JULIE CLACK AND COLLIN CLACK INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF AN INFANT NATHALIE CLACK PLAINTIFFS APPELLANTS v. SISTERS OF CHARITY HOSPITAL CATHOLIC HEALTH SYSTEM INC JODI BALL JAIME REHMANN AND ROBIN BOCHACKI DEFENDANTS RESPONDENTS (2017)

MEMORANDUM AND ORDER

Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered November 30, 2015.  The order granted the motion of defendants Sisters of Charity Hospital, Catholic Health System, Inc., Jodi Ball, M.D., Jaime Rehmann, M.D., and Robin Bochacki, N.N.P., for a protective order.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the motion is denied.

Although Carvalho and its progeny have established that “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness” (53 A.D.2d at 635), the questions at issue herein are not precluded by Carvalho.  Contrary to the contention of defendants, the questions posed to the witness, i.e., questions about the strips generated during a time that the witness was supposed to be monitoring the mother's care, and which the witness may have “glanced at” or “watch[ed],” “relate[ ] directly to [the witness's] care and treatment ․ and ․ were appropriate” (Lieblich v Saint Peter's Hosp. of the City of Albany, 112 AD3d 1202, 1205).

Based on our resolution, we do not address plaintiffs' remaining contention.

Frances E. Cafarell

Clerk of the Court