Lawyer pushes for hospital to release records in drug case

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by Debra Friedman
Greenwich Time

March 10, 2010

STAMFORD — An attorney representing eight women in a class-action lawsuit against Greenwich Hospital for its handling of a drug-addicted surgeon demanded an explanation from hospital lawyers Wednesday on why they are withholding nearly 300 pages of records and keeping him from deposing hospital officials with knowledge of the case.

Attorney Sean McElligott stated his concerns during a hearing in state Superior Court, asking a judge to order a deadline for lawyers to back up their argument that Dr. Ian Rubins' hospital personnel file is "privileged information."

"We literally are handcuffed in terms of moving forward with discovery," said McElligott. "The key issue is what the hospital knew and when, and that information is contained in the personnel file."

Rubins died of a heroin overdose in 2008 after several stints in rehab. The hospital stated publicly that it was aware of Rubins' drug problems since 1997, although it was not documented with state public health officials until April 2006, according to documents.

The heart of the class-action lawsuit seeks to determine exactly when the hospital became aware of Rubins' problems, said McElligott, adding that he cannot prepare for trial without reviewing the doctor's file.

The lawsuit, which was filed in 2008, alleges that the hospital intentionally ignored Rubins' drug abuse for fear it would diminish profits from its breast center, which has a prominent reputation. The suit specifically alleges that the hospital violated the Connecticut Unfair Trade Practices Act, and claims fraud and a breach of the hospital's fiduciary duty.

On Wednesday, McElligott also told a judge that the hospital's lawyers are preventing him from deposing "key players" at Greenwich Hospital with knowledge of Rubins' drug abuse while at the same time deposing his clients.

Lawyers from the hospital responded to McElligott's claims with expressions of confusion, telling a judge they believed the hearing was strictly to outline scheduling and not to argue about records.

They later agreed to a two-week deadline for submitting their first brief providing a legal basis for withholding documents and keeping hospital officials from being deposed. McElligott also seeks legal justification for why hospital officials have refused to answer his list of written questions about the case.

Judge John Blawie said he wanted to resolve the issue quickly.

"The court understands that this needs to be decided because of what it is doing to the case in the sense of where it is and where it needs to be," said Blawie, who is expected to rule on the release of documents during a May 3 hearing.

According to court records, McElligott filed a motion seeking Rubins' personnel file nearly a year ago. The hospital initially responded by releasing a "privilege log," which shows that there are 289 pertinent documents dating back to 1994, but the log does not disclose what each document contains. The log only includes categories and authors of each item. Many items are hand-written notes from the hospital's risk manager, e-mails between hospital supervisors, and diagnostic reports, according to the log.

After inspecting the documents in question and reading the briefs that will be filed in the next few weeks, Blawie will then rule on which documents should be disclosed to the plaintiffs in the case.

After the hearing Wednesday, McElligott said he was frustrated by the hospital dragging its feet on discovery issues.

"We are disappointed that the hospital continues to conceal the extent of what it knew in regards to Dr. Rubins drug-abuse history from their patients," said McElligott.

The spokesman for Greenwich Hospital, George Pawlush, said it is the hospital's policy not to comment on pending litigation.

The class-action lawsuit is one of two cases filed against the hospital involving Rubins. A Newtown couple filed a lawsuit earlier this year arguing that the hospital was negligent in allowing Rubins to operate despite knowing about his drug-abuse history. Lawyers in both cases have obtained documents from the state Department of Public Health that show Rubins allegedly used a fake urine sample during a drug screening and injected himself with a powerful painkiller in a hospital operating room.

The lawyer in that case plans to add more counts in the lawsuit in the coming weeks.