Speken’s Reply to Columbia’s Motion to Dismiss

A Death in the Hospital /Speken’s Reply to Columbia’s Motion to Dismiss


As Co-Administrators of the Estate of Seth B.SPEKEN, deceased, 
and RALPH H. SPEKEN and 
STEPHANIE Z. SPEKEN, Individually,



– against-

“JOHN DOE”, and “JANE DOE”, 
(true identities unknown, being doctors, nurses, residents, interns, and
other medical or technical personnel who rendered
services to the decedent at the COLUMBIA


RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, depose and say the following under penalty of perjury:

1. As demonstrated below, defendant’s motion to dismiss the instant complaint upon the ground our claims therein to vacate that provision of the parties General Release which requires our silence about our son’s death at the hands of defendant, are barred by the doctrine of res judicata, is incorrect (without merit). It is well settled that “res judicata embraces not only matters which are actually litigated before a court, but also those relevant issues which could have been litigated”. Boorman v. Deutsch, 152 A.D.2d 48, 547 N.Y.S.2d 18 (1st Dep’t 1989), appeal dismissed, 76 N.Y.2d 889, 561 N.Y.S.2d 550 (1990).

2. Here, however, plaintiff’s pro se Summons and Complaint seeks to  litigate an issue – – i.e., the criminality of defendant’s conduct in the death of our son and the legality of the provision in the General Release requiring our silence about such criminal behavior – – which was present from the beginning, in fact raised by plaintiffs in the Court below but which was never adjudicated or even addressed by the Court. Therefore, our second action is not barred by res judicata. We seek only to have the issue of defendant’s criminality in the death of our son fully and finally adjudicated on the merits. 


3. On October 11, 1994, plaintiffs commenced an action for the wrongful death of their son, Seth Speken, against defendant and others, by filing a summons and complaint with the Clerk of Supreme Court, New York County.

4. On July 8, 1999, plaintiffs entered into an open court settlement in which, inter alia, plaintiffs were required to never again speak about the case and to expunge their website entitled “A Death in the Hospital” (http://www.med-malpractice.com) from the Internet. The website deals extensively with Seth’s death.

5. In substance and effect, the General Release requires our promise to be silent about the criminal actions on the part of the Defendant that led to our son’s death. Yet, pursuant to New York State Penal Law §215.40 (See, Exhibit “A” hereto), this silence on our part would constitute a class A Misdemeanor. Further, it is well settled that it is illegal to sign an agreement in which silence is pledged regarding a crime (See, Exhibit “B” hereto).

6. Plaintiffs made a motion to vacate the General Release upon the ground that it was procured under duress and coercion (See, Exhibit “E” to defendant’s moving papers, Plaintiff’s Pro Se Motion to Vacate the General Release). In this motion the issue of defendant’s criminality in the death of our son was clearly raised (See, pages 5 and 6 of our affirmation in support of the motion to vacate). Our son died due to 66+ hours of illegal restraints in violation of the New York State Health Law on Restraints. (Section 33.04 Restraints of Patients Mental Hygiene Law).

7. By order dated March 31, 2000, Justice Heitler denied our motion to vacate the General Release (See, Exhibit “I” to Defendant’ motion, Decision and Order of Judge Heitler). The Judge’s opinion addresses only the issue of coercion and finds that it is not sufficient to vacate the release. Nowhere in the Decision is there any discussion of the fact that Seth’s death was due to criminal acts on the part of the Defendant, although such argument was indeed raised by the pro se plaintiffs.

8. Although the Court was informed of the criminal dimension of the defendant’s actions, the issue having been raised by plaintiffs pro se, there is absolutely no indication that this issue was considered by Justice Heitler or played a role in her final decision. The Spekens, being Pro Se litigants, were unfamiliar with the Law and were unaware at that time that in addition to the criminal act of breaking the New York State Health Law on Restraints, Section 120.20 of the Penal Law was also broken.

9. We thereafter timely appealed to the Appellate Division, First Department from Justice Heitler’s order denying our motion to vacate. In our brief filed with the Appellate Division (See, Exhibit “J” to defendant’s motion to dismiss), we again clearly raised the issue of the fact that Seth’s death was due to defendant’s violation of the New York State Health Law on Restraints. In this regard, we specifically argued that “. . . the hospital’s actions were far from a simple negligence and constituted criminal negligence.

10. In its order (See, Exhibit “M” to defendant’s motion to dismiss), the Appellate Division affirmed Justice Heitler’s order denying our motion to vacate upon the ground that there was no basis to vacate the General Release because the settlement was entered into after “full allocution by the Court”.

11. The Appellate Division, and Justice Heitler before it, did not even address the issue of defendant’s criminal conduct. The issue of defendant’s criminality was never adjudicated. The Court was silent on this issue although it was raised by plaintiffs pro se. It is precisely this issue, raised in the first action, that is further developed herein, and indeed, constitutes the gravamen of our Summons and Complaint in the instant action.


12. In its motion to dismiss, defendant asserts (Defendant’s affirmation at 5, item 11) that, “[p]laintiffs now try to relitigate this issue (i.e., the issue of the Contract for Silence) though the vehicle of this, a new and separate lawsuit”. Contrary to the Defendant’s assertion, this is an action not precluded by Res Judicata since the issue of defendant’s criminal conduct was never a factor in the Decision and Order of Judge Heitler although such issue was clearly raised in our initial Motion to Vacate. Criminality was never an “afterthought”.

13. In The Evergreens v Nunan, Commissioner of Internal Revenue, 141 F.2d 927 (2d Circuit 1944), cert. denied, 323 U.S. 720, the Circuit Court of Appeals, Second Circuit, stated that issue preclusion could apply to issues that were “ultimate facts” but not so “mediate data” that had not been demonstratively adjudicated.

14. Evergreens involved a case concerning a dispute with the Internal Revenue Service over a tax matter, wherein the appellant sought to prove that a fact significant to his second action could be inferred as established by Tax Court’s decision in the first proceeding. As a result, the appellant sought estoppel of the Revenue Board in the second action.

15. The Circuit Court of Appeals disagreed. With respect to his claim that a fact could be inferred as established in his first action, the Court stated, “…nothing in the record of the first proceeding bears this out…” Quoting the Duchess of Kingston Case, Justice Hand in Evergreen states, ” ‘But neither the judgment * * * is evidence of any matter which came collaterally in question * * * nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment’”. 

16. In Speken v Columbia, the plaintiffs brought an action to Vacate the General Release. Two issues were presented about the release. One was that they signed the General Release under duress and coercion by their prior attorney.

17. The other issue was that defendant’s affirmative acts and omissions constituted criminal conduct in that the defendant’s violation of New York State law had led to their son’s death. With respect to this second issue, we specifically argued that “Columbia, on the other hand, will be unable to present any validating evidence that their treatment of Seth Speken was appropriate, recognized, or humane. There is no evidence in the literature at all which states that inhumane restraining is part of the treatment of withdrawal. This is a second reason for a criminal investigation. The New York State Law on Restraints was broken by this hospital for such a long period of time (66+ hours) that it points to an atrocity and a human rights violation. Their treatment actions were criminal.” (See, Defendant Exhibit “E”, motion to vacate, at 6).

18. Justice Heitler rendered no opinion on this issue. Therefore, the facts presented by the Plaintiffs about the Defendant’s criminal violation of the New York State Health Law on Restraints have not been adjudicated and are therefore not barred by the doctrine of res judicata.

19. In Dowling v United States, 493 U.S. 342, the defendant’s conviction in a second trial was not set aside because the “ultimate fact” that decided the second trial played no role in his acquittal in the first. In his opinion, Justice White states (at 350): “The Courts of Appeals have unanimously placed the burden on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding.”

20. Here, defendant cannot meet its burden of demonstrating that the issue of defendant’s criminality and the consequent illegality of that provision of the General Release which requires plaintiffs’ silence about the crime, was actually decided in the first proceeding. In her opinion on the Spekens’ Pro Se Motion to Vacate the General Release, Justice Heitler is completely silent on the issue they raised of the Defendant’s criminality. Not a word is said about this issue. If any thing, it might even be inferred that the Judge’s silence indicated she agreed with the Spekens about the Defendant’s criminal actions. A legal maxim is Quitece Consentiere – consent can be construed from the Judge’s silence.

21. The case of O’Brien v. City of Syracuse, 54 N.Y.2d 353, 445 N.Y.S.2d 687 (1981) which holds that once a claim based upon a set of facts or incidents is finally concluded all claims arising out of the same facts or incidents are barred “even if based upon different theories or if seeking different remedies”, is not here controlling. O’Brien did not involve, nor does it address, a situation in which, as here, a crucial issue (such as the criminality of conduct) was raised in the first action but not adjudicated. Indeed, in the first action of Speken v. Columbia, all theories for relief were raised, including the argument for vacatur of the General Release upon the ground that it constituted an unlawful contract of silence about defendant’s criminal actions. This “theory” of relief is not simply an afterthought. This issue was not addressed by Supreme Court or the Appellate Division although clearly within the record, and therefore is not barred by res judicata. The Evergreens v Nunan, Commissioner of Internal Revenue, supra; Dowling v United States; supra.

22. In defendant’s moving papers (See, Affirmation at pages 5, 6, items 12 an 13), defendant cites a series of cases are presented in which subsequent litigation was precluded because there was an attempt to present new claims based upon the same set of facts that were rejected in the first litigation.

23. Defendant’s reliance on Reilly v Ogden R. Reid, as Commissioner of the New York State Department of Environmental Conservation, et. al., 407 N.Y.S.2d 645, is misplaced. Reilly speaks to the exact situation detailed in the Spekens’ Pro Se Motion to Vacate the General Release. The Court of Appeals held (at 648, item 5), “…two or more different claims or causes of action may often arise out of a course of dealing between the same parties, even though it is not, except in refined legal analysis, easy to say that a different gravamen is factually involved. A party’s choice to litigate two such claims or causes of action separately does not bar his assertion of the second claim or cause of action.”

24. In the Spekens’ situation, there are clearly two different gravemen relating to the General Release. One is that of the coercion that led to them signing the release and the other is the criminality on the part of the Defendant that should have barred any request for the Spekens’ silence. Spekens’ Summons and Complaint is an action to litigate this second issue that is total and distinct from the first. Contrary to the Reid case in which the Plaintiff sought to bring up an issue of criminality for the first time after losing on his initial action, the Spekens seek adjudication of an issue of criminality that was present from the beginning and never addressed by the Court.

25. The Smith v. Russell Sage College, 54 NY2d 185, 194, 445 NYS2d 68 (1981) case, and the other cases on which the Defendant relies, preclude subsequent theories that all relate to only one basic gravemen.

26. In Speken v. Columbia, the Defendant has no right to insist that the Plaintiff’s remain silent because it is unlawful to remain silent about a crime (exhibit A). “Any act, promise or agreement designed or intended to accomplish the furtherance or effectuation of an unlawful purpose is unlawful, and every such promise or agreement is void and unenforceable” (Dodge v. Richmond, 10 A.D.2d 4, 196 N.Y.S.2d 477, affd., 8 N.Y.2d 829, 203 N.Y.S.2d 90, 168 N.E.2d 531).

27. Exhibit C hereto is from the autopsy report of the New York County Medical Examiner. It states that Seth’s death was due to pulmonary emboli due to immobilization. In other words, death was due to the restraints. There were 66+ hours of restraining in violation of the law. The autopsy stated that death was due to “pulmonary emboli due to immobilization…”. It was the illegal restraints that immobilized Seth. This is not a theory but a fact obvious on its face. Seth was the victim of Battery due to violation of the New York State Mental Hygiene Law on Restraints. Crime is defined as the breaking of a law.

Further analysis reveals that the law on Reckless Endangerment was also broken.

28. Columbia cannot insist on silence because the Seth’s parents have both a right and a duty to talk about why and how their son died. As will be developed below, the Public Interest now demands total frankness and disclosure regarding medical malpractice.

29. Defendant’s Affirmation in support of the motion to dismiss at 6, Item 14, states that the Spekens dual claims that the confidentiality component of the General Release are against Public Policy are “…meritless legal arguments that could have, should have, and were raised in the prior action when plaintiffs moved to vacate the settlement agreement.”

30. The legal issue regarding the silence component of the General Release in Speken v. Columbia is entirely analogous to the issue in Upper Nyack v Missionary Alliance, 540 N.Y.S.2d 125 (Sup. 198). There, the Court held that even though the Defendant had agreed to pay its share of village expenses in lieu of taxes, the agreement was null and void as being against pubic policy. At P. 130, item 12, the Court stated, “A contract’s illegality may lie in its consideration (21 NY Jur 2d, Contracts Section 138), an illegal consideration consisting of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy (21 NY Jur 2d,

Contracts Section

139). The term “public policy” has been defined as the principle which declares that no one can lawfully do that which has a tendency to be injurious to or against the public good will or welfare (Johnston v. Fargo,184 N.Y. 379, 77 N.E. 388). “The principle that contracts against public policy are void and unenforceable is not based upon any desire to relieve a party from the obligation which he has assumed, but rather is based upon the theory that such an agreement is injurious to the interests of society in general, and that the only way to stop the making of such contracts is to refuse to enforce them, leaving the parties without a remedy for a breach thereof” (McCall v. Frampton, 99 Misc.2d 159, 167, 415 N.Y.S.2d 752, mod on other grounds 81 A.D.2d 607, 438 N.Y.S.2d 11).

31. In the case of Speken v. Columbia, the General Release calls for them to be silent about the fact that their son died from criminally negligent acts in a hospital, and to hold the hospital blameless for these acts. 

This requirement for silence is contrary to “public policy” on its face.

32. As noted in Exhibit A of this motion, Section 215.40 of the Penal Law would bar the Spekens from accepting the Hospital’s offer of $500,000 in returning for holding the Hospital “harmless”. This would mean, in the language of the Penal Code, that the Spekens would guilty of compounding a crime. It is a class A misdemeanor to do so. Obviously, it would be against the Public Interest if the State Supreme Court chooses to enforce silence on the Spekens. Given the criminal nature of the Hospital’s actions in the death of Seth Speken, the confidentiality provision of the General Release cannot stand. 

33. The Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”) now requires total transparency on all aspects of bad medical treatment. These new regulations on the part of the JCAHO finalize the issue that silence about unfortunate medical acts is contrary to the interests of the public. Upwards of 98,000 people die yearly according to the Institute of Medicine from negligent medical care. The JCAHO believes that silence about negligence and the resulting lack of awareness by the public as to the depth and extent of the problem has been the single most important factor delaying better understanding and solutions. The Spekens’ website, http://www.med-malpractice.com, has been read by thousands of providers and consumers since first published in 1996. Dr. Speken, a member of the Patient and Family Advisory Council of the National Patient Safety Foundation, has received commendation from medical leaders regarding the website. It is the most detailed analysis of how gross medical negligence can lead to death available on the Internet. It is considered a valuable contribution to the patient safety literature and the quest for safe health care. Forcing the Spekens to remove their website would be against the interests of the public as well as the medical community.

34. In Brown v. Milando, 700 N.Y.S.2d, 856, the Appellate Division, Second Department, overruled the judgment of the lower Court granting summary judgment for dismissal on the basis of res judicata. The Supreme Court was found mistaken in concluding that the Court in the first action had granted the Defendant an “easement running with the land.” Under this mistaken  interpretation – or inference – the Supreme Court would have barred the Plaintiff’s attempt to halt the Defendant from further encroachment on his land. The Appellate Division understood that this incorrect understanding permitted further unfair harm to the Plaintiff.

35. In Speken v. Columbia, the Supreme Court never even commented on the issue raised of Defendant’s criminality in breaking Mental Hygiene Law § 33.04. Were the Court to have addressed this issue, it would have been obvious that silence about the matter could not be permitted in any settlement agreement. The Spekens would be put in the position of not only suffering the loss of their son, but also of being “gagged”. In Brown v. Milando, were the error on the part of the Supreme Court not reversed, a great wrong would have been permitted to the Plaintiff. This is exactly what did happen to the Spekens. By virtue of the fact that the Court never acknowledged the issue of criminality, an illegal provision for silence about the crime was permitted. 

The Spekens’ second action is only a continuation for adjudication of this issue, not resolved in the first.

36. Restatement of the Law (Second) Judgments 2d, Section 28, Item 5 states, “There is a clear and convincing need for a new determination of the issue (a) because the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.” (Exhibit D).

37. There is a “clear and convincing need for a new determination” regarding the issue of silence in the Spekens’ case. All three of the above conditions for the new determination have been satisfied.

WHEREFORE, plaintiffs respectfully urge that defendant’s motion to dismiss the summons and complaint, be denied in all respects.

Dated: Bronx, New York
August 10, 2001