New York State Court of Claims

New York State Court of Claims

BENNETT v. THE STATE OF NEW YORK, #2000-004-538, Claim No. 100711, Motion No. M-62385


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for Order of Default Judgment; or to suppress the improperly obtained documents, upon the ground that they were improperly, illegally, or irregularly obtained by defense counsel, and a substantial right of the claimant has been violated, resulting in severe prejudice to claimant; or awarding claimant reasonable attorney fees to prosecute this matter, and for any such other and further relief as this Court deems just, proper and equitable.

The following papers were considered by the Court:

Claim, filed July 12, 1999 1

Verified Answer, filed July 30, 1999 2

Demand for Verified Bill of Particulars, filed
September 7, 1999 3

Bill of Particulars, filed September 29, 1999 4

Notice of Motion, filed September 15, 2000 5

Affidavit of Claimant in support of motion, sworn
to August 31, 2000 6

Claimant's Memorandum of Law, dated August 31, 2000 7

Letter from Assistant Attorney General James E.

Shoemaker to the Court, in opposition to Claimant's
motion, dated October 2, 2000 8

In the Claim filed herein Claimant seeks damages for the alleged negligent failure by the State to provide adequate and medically necessary treatment for periodontitis. The gist of the Claim appears to be that Claimant's "MILD PERIODONTITIS" (Paper No. 1, ¶ FOURTH [A]) progressed to "ADVANCED PERIODONTITIS" (Paper No. 1, ¶ FOURTH [C]) because of the negligence of the State.

In his Memorandum of Law we find under "relief requested" the following:
Claimant requests this Court (as a sanction) Order suppression of all records in the AAG's possession illegally, improperly or irregularly acquired, and those that are determined to be irrelevent [sic] to the instant matter before this Court.

(Paper No. 7)

Apparently what happened here is that the Attorney General's office obtained copies of Claimant's dental records and, perhaps, copies of Claimant's medical records directly from the Department of Correctional Services, without first obtaining a medical authorization(s) to do so from the Claimant. It appears that the Attorney General's office originally requested Claimant's dental records from the Superintendent of the Attica Correctional Facility. (see, Paper No. 6, Exhibit B, Letter from an Attorney General Investigator to the Superintendent of the Attica Correctional Facility, dated July 22, 1999 and letter from an Attorney General Investigator to the Superintendent of the Attica Correctional Facility, dated August 26, 1999) It is not entirely clear whether the Attorney General's office also obtained a copy of Claimant's medical records from the Department of Correctional Services but that may have happened, since, in opposition, Assistant Attorney General James E. Shoemaker states,
In claimant's claim he alleges that his ‘dental problems' began around August 12, 1996 and continued to the present time. Claimant's dental records begin on August 15, 1996 and contain entries until June of 1999. Consistent with claimant's request, defendant has only reviewed dental records.

(Paper No. 8)

22 NYCRR Section 7651 is entitled "HEALTH SERVICES" and it addresses the health care to be rendered to inmates in New York State Correctional Facilities. Section 7651.33, entitled "Health systems records and data", provides
Nothing in this Part shall prevent access by the commission or any employee designated by the chairman of the commission to any and all records maintained by the department or any correctional facility or to any information from any employee of the department, including but not limited to telephonic consultation, pertaining to any inmate's medical treatment.

7 NYCRR Section 5.24 is entitled "Medical Records" and it addresses the release of inmate medical records, it provides, in pertinent part:
(a) Inmate medical records shall be released pursuant to subdivision (b) of this section....

(b) An inmate medical record shall only be made available to:

(1) the mental health information services;

(2) the correction medical review board;

(3) the Department of Mental Hygiene...

(4) the Division of Parole...

(5) a judicial or administrative body or officer before which the

physical or mental health of an inmate is in issue, only if a court has issued a subpoena or other court order signed by a judge specifically demanding the production of medical records;

(6) agencies and organizations requiring information necessary to

make payments to or on behalf of a subject...

(7) physicians and providers of health and mental health services,

upon written request only, when accompanied by an authorization signed by the person whose record is desired, or by someone authorized to act on his behalf...

(8) certified social workers and public social services agencies

involved in caring for treating or rehabilitating an inmate, upon written request only, when accompanied by an authorization specifying the release of medical health records signed by the person whose record is desired, or by someone authorized to act on his behalf;

(9) attorneys representing inmates...

(10) to bona fide scientific and historical researchers, provided

there is no unwarranted invasion of the privacy of the subject;

(11) other persons, pursuant to the provisions of Public Health Law, section 18; and

(12) to the inmate....

Claimant apparently wrote to the Legal Aid Society. Attached to his motion papers is a letter from a Legal Assistant of the Legal Aid Society to him dated January 27, 2000. In this letter we find:
I am writing in response to your letters of January 3 and January 18, 2000 regarding the release of your medical records to the attorney for the state. You are presumably technically correct: your medical records should not be shared with the attorneys representing DOCS without either your releasing them or a court ordering them to be produced through discovery. As a practical matter, however, when you file a lawsuit in which your medical care is put into question, the defendants (and their attorneys) will be able to obtain your medical records without your written permission. However, your medical records should only be provided to the attorneys representing DOCS in the same manner as the records of any person who puts their medical care into question: the defendants should request that your medical records be provided through discovery.... Realistically, however, since you have sued about medical care, the state is entitled to prepare its defense, and for this they need your medical records and so they would be ordered to be produced through discovery....

(Paper No. 6, Exhibit H)

Good advice.

Obviously, since Claimant has placed his dental history and treatment in issue, failing an authorization signed by him, the State would be able to obtain a Court order directing that a copy of Claimant's dental records be delivered to the Attorney General. As can be seen, the applicable regulations supply no different legally acceptable route. Thus, as noted by the Legal Aid Society, "they would be ordered to be produced through discovery". (Paper No. 6, Exhibit H) Therefore, no harm has been done. Indeed, some paper work has been avoided. Nonetheless, the Attorney General's office would be well advised to follow proper procedure in the future.

With regard to Claimant's medical records, if indeed the Attorney General's office has obtained a copy of Claimant's medical records other than his dental records, the Court will order those records returned to the Department of Correctional Services, since Claimant has not put his overall medical condition in issue.

Claimant's motion for a default judgment must be denied because there has been no default. Claimant's motion to suppress improperly obtained documents, presumably his medical records, is meaningless because those records are not and will not be before the Court in the future, unless circumstances change. Finally, the Court is not empowered to award Claimant attorney's fees "to prosecute this matter". (Paper No. 5)

In light of the foregoing, it is

ORDERED that Motion No. M-62385 is denied in its entirety, and it is

ORDERED, sua sponte, that the Attorney General's office is directed to return any copies of Claimant's medical records in its possession, other than copies of Claimant's dental records, to the Department of Correctional Services, forthwith.

October 30, 2000
Binghamton, New York

Judge of the Court of Claims