New York State Court of Claims

New York State Court of Claims

BURCH v. THE STATE OF NEW YORK, #2000-012-512, Claim No. 096119, Motion No. M-60389


In camera inspection of medical records.

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):

John P. Lane
Claimant's attorney:
Rosenthal, Siegel, Muenkel & Maloney, LLPBy: Paul F. Murak, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Richard B. Friedfertig Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's application to compel disclosure pursuant to CPLR 3124:

Notice of Motion, Supporting Affidavit,
and Exhibits A & B 1

Affidavit in Opposition of Richard B.
Friedfertig, sworn to October 6, 1999 2

Documents presented for in-camera inspection

On May 5, 1995, claimant, a patient at Buffalo Psychiatric Center, was injured when another patient, one John Card, attacked her and bit off a portion of her ear. As part of the discovery in this action, counsel for claimant requested the medical and institutional file of the assailant, material that is protected by Mental Hygiene Law § 33.13(c)(1). Defendant declined to produce the documents for that reason, and claimant's counsel subsequently moved for an order directing production of the record. Counsel asserts that the file is needed for the following reason:

It is a significant element of the cause of action of the Claimant to establish that the Buffalo Psychiatric Center had prior notice of the assaultive tendencies of the patient who attacked the Claimant, and in order to do so, it is necessary to determine the nature of prior assaults and the responses of the decision makers at the Buffalo Psychiatric Center to those assaults.

(Not of mot, affid. of Paul Murak, Esq., ¶ 6).

Mental Hygiene Law § 33.13 (c) requires that the clinical records of patients or clients in facilities licensed or operated by the Office of Mental Health (OMH) or Office of Mental Retardation and Developmental Disabilities (OMRDD) which contain identifying information "shall not be a public record and shall not be released by the offices or its facilities" except in certain circumstances. Subdivision (c)(1) provides, in relevant part, that such information may be released "pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality."

Where disclosure of otherwise confidential records has been sought in connection with an alleged assault by a mental patient, courts have directed that all medical information about the patient be removed, including information concerning diagnosis and treatment (Exelbert v State, 140 AD2d 665 and cases cited therein) and professional opinions of the patient's propensities and prognosis (Boykin v State of New York, 7 AD2d 819; Shaw v State of New York , 23 Misc 2d 125, 126). Claimants who allege that they were violently injured by a mental patient are particularly entitled to reports of similar violent behavior (Villano v State of New York, 127 Misc 2d 761). Consequently, courts have ordered disclosure of

all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc.

while ordering redaction of

any entry where a doctor, nurse or other medical personnel refer to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient

(Brier v State of New York, 95 AD2d 788.)

Defendant provided the court with a copy of John Card's file from Buffalo Psychiatric Center, which appears to be substantially complete (see footnote 1 on the Attachment). The Court has reviewed the contents of that file in camera and, in light of the discussion set forth above, has determined that claimant is entitled to copies of certain documents identified in the Attachment to this order. A set of those documents that have been selected for production, some of which have been redacted in part, will be available to counsel for defendant for one week commencing on May 22, 2000, during which counsel may review the documents. Any objections to disclosure of specific documents should be made in letter form, on notice to claimant, on or before May 31, 2000. If there is no such objection, a set of the selected and redacted documents shall be provided to claimant on June 2, 2000. This deadline will be extended as necessary in the event that objections are raised.

To the extent indicated, claimant's motion is granted.


May 8, 2000
Buffalo, New York

Judge of the Court of Claims