New York State Court of Claims

New York State Court of Claims

BALDWIN v. THE STATE OF NEW YORK, #2001-001-086, Claim No. 103154, Motion No. M-64036


Synopsis


Claimant's motion to compel discovery is granted; the State is ordered to produce any responsive documents as described in this order for the Court's in camera inspection within forty-five (45) days of the filing date of this order.

Case Information

UID:
2001-001-086
Claimant(s):
CLARENCE BALDWIN, AS LEGAL GUARDIAN OF JOHN DOE, an Infant Because this claim involves a victim of a sexual offense, the caption has been amended to give the infant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Claim No. 103154 pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]).
Claimant short name:
BALDWIN
Footnote (claimant name) :
Because this claim involves a victim of a sexual offense, the caption has been amended to give the infant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Claim No. 103154 pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]).
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103154
Motion number(s):
M-64036
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
McPhillips, Fitzgerald and Cullum, LLPBy: William J. White, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 13, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion to compel discovery: Notice of Motion, dated August 6 and filed September 5, 2001; Affidavit in Support of William J. White, Esq., sworn to July 25 and filed September 5, 2001, with annexed Exhibits A-G; Memorandum of Law, dated August 6 and received September 5, 2001; Affirmation in Opposition of Belinda A. Wagner, Esq., AAG, dated October 3 and filed October 9, 2001, with annexed Exhibits A-B; Reply Affidavit of William J. White, Esq., sworn to October 5 and filed October 9, 2001; the claim, sworn to September 28 and filed September 29, 2000; Response to Claimant's Demand for Discovery and Inspection, dated April 20 and filed April 24, 2001, with annexed Exhibits A-B.

After a number of conferences (22 NYCRR 206-8 [b]), claimant Clarence Baldwin ("claimant") filed this discovery motion, which primarily calls for the Court to address the applicability of the confidentiality provision of section 33.13 of the Mental Hygiene Law.

The underlying claim was filed by claimant as legal guardian of John Doe, an infant ("the infant"), on September 29, 2000; and alleges that on July 4, 2000 the infant was "raped and sexually assaulted" by William Ramsey ("Ramsey"), a person with mental retardation who had "been a patient of and/or under the care, supervision and treatment" of defendant State of New York (defendant" or "the State") (claim, sworn to September 28 and filed September 29, 2000 ["claim"], pp. 2-4).[1] The claim faults the State for "failing to take reasonable and necessary actions to review the release, discharge or status of [Ramsey] to the general community" (claim, p. 3); for failing to confine Ramsey; and for failing to supervise him properly and to take precautions to prevent him from perpetrating such an assault (claim, pp. 2-4). Claimant alleges that Ramsey was "known to be dangerous, disruptive, disorderly and assaultive" (claim, p. 4) and, thus, the attack upon the infant was reasonably foreseeable (claim, p. 4).

The State's general position, as disclosed by its response to discovery demands and at conferences and as reemphasized in its response to this motion, is that it did not have "custody" or "control" over Ramsey during the relevant time period. Rather, as a person with mental retardation, he was merely receiving assistance and supervision in his daily living activities (Response to Claimant's Demand for Discovery and Inspection, dated April 20 and filed April 24, 2001, with annexed Exhibits A-B ["Response"], ¶ 4; Wagner Aff., ¶ 6). These "residential habilitation services" were provided through an agreement between the State and a non-profit organization, Alternatives in Mankind Inc. ("AIM") (Wagner Aff., ¶¶ 3-6, Exh. A).[2]

Claimant's discovery demands can be broadly grouped into two categories. The first group of demands seeks documents which would tend to answer the question of what relationship, if any, existed between the assailant, Ramsey, and the State on the date of the assault and for a period of time prior to it; i.e., the demands appear targeted at shedding light on the issue of whether and/or to what extent the State had any supervisory role over Ramsey. These demands collectively seek information regarding any contracts or agreements between defendant and third parties "relating to the custody, care, control and supervision of [Ramsey]" (Affidavit in Support of William J. White, Esq., sworn to July 25 and filed September 5, 2001, with annexed Exhibits A-G ["White Aff."], Exh. C [Demand for Discovery and Inspection, ¶ 3) and information pertaining to what extent the State provided for, or arranged for others to provide, Ramsey with housing and services (see, White Aff., ¶¶ 6, 8, 9, Exh. C, ¶¶ 1, 2, 3, 7, 8, 9, 14).

The second broad grouping of demands can be categorized as seeking documents that might establish what, if any, notice the State may have had that Ramsey was dangerous such that it could have taken steps to alleviate any risk that he presented to others. A representative example of these demands seeks "copies of all written reports, notes, correspondence and records of investigations, incident reports, inquiries or assessments which relate to [Ramsey's] activities for the period in which the State of New York or any third parties under contract with the State of New York, supervised and controlled [Ramsey]" (White Aff., ¶ 6, 8, 9, Exh. C, ¶ 6). Claimant also seeks incident reports in conjunction with the incident giving rise to this claim (White Aff., Exh. C, ¶ 11). In order to establish notice (White Aff., ¶¶ 13), claimant further seeks to discover copies of any reports, records or notes of those who treated Ramsey prior to July 4, 2000, including any period of time the State supervised or controlled Ramsey (White Aff., Exh. C, ¶ 4); copies of all reports, records, evaluations or medical opinions regarding Ramsey's care, treatment, supervision or control (White Aff., Exh. C, ¶ 5); and copies of any medical, physical, psychological or psychiatric reports/records relating to the care and treatment of Ramsey (White Aff., Exh. C, ¶ 10).

Defendant has resisted providing claimant with much of the sought after material, primarily upon the ground that disclosure is precluded by application of the confidentiality provisions of Mental Hygiene Law § 33.13 and CPLR 4504 (Wagner Aff., ¶¶ 4-6, 11). In addition, the State also appears to argue that documentation regarding custody or control of Ramsey does not exist because the State did not play such a role with respect to him (Wagner Aff., ¶¶ 6, 18).

As a starting point, the Court is guided by the broad principle that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]) and that "open and far-reaching pretrial discovery" is generally favored (DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193, rearg. denied sub nom. Poole v Consolidated Rail Corp., 81 NY2d 835, cert. denied 510 US 816). The public policy concern regarding a patient's or consumer's privacy interests counterbalances and limits this broad-sweeping rule of liberal disclosure in this claim, however. Specifically, Mental Hygiene Law § 33.13, which limits a litigant's ability to discover information contained in records maintained by facilities licensed or operated by the Offices of Mental Health and Mental Retardation and Developmental Disabilities, is such a limiting statute. Its recognized purpose is to insulate mental health service consumers from the humiliation, embarrassment and potential stigma that might otherwise be occasioned by unfettered disclosure (see generally, Duzon by Duzon v State of New York, 155 Misc 2d 86, 88; Palmer v Durso, 90 Misc 2d 110, 112; Munzer v Blaisdell, 183 Misc 773, affd 269 AD 970). The statute makes confidential, among other things, "clinical records or clinical information tending to identify patients or clients" (see, Mental Hygiene Law § 33.13 [c]).

The confidentiality created by this provision, however, is not absolute and may yield upon a finding by this Court, in an exercise of its discretion, "that the interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13 [c] [1]; see, Matter of Warrington v State of New York, 303 NY 129, 139-140; Matter of State of New York Office of Mental Retardation and Dev. Disabilities v Mastracci, 77 AD2d 473, 477). Here, the Court exercises its discretion in favor of finding that the circumstances present in this case satisfy this threshold and justify a degree of limited disclosure.

The limitations imposed are two-fold. The first is guided by the statute itself, which provides that any "disclosure made pursuant to this section shall be limited to that information necessary in light of the reason for disclosure" (Mental Hygiene Law § 33.13 [f]).[3] The second limitation, related to the first by the common thread of relevancy, requires the Court to review the material, in camera, and redact certain information that is confidential in nature, such as medical information "regarding diagnosis, prognosis, propensities, and treatment" (Lee v New York City Tr. Auth., 257 AD2d 611; see, Brier v State of New York, 95 AD2d 788; Villano v State of New York, 127 Misc 2d 761).

"Claimants who allege that they were violently injured by a mental patient [or, as here, a person with mental retardation allegedly under some degree of State control] are particularly entitled to reports of similar violent behavior" (Burch v State of New York, Ct Cl, Lane, J., UID # 2000-012-512, May 8, 2000, citing Villano v State of New York, supra).[4] For purposes of this action, the Court considers any prior instance(s) of assaultive behavior on the part of Ramsey relevant and subject to disclosure whether sexual in nature or not. The Court is of the view that the assault on the infant, while sexual in nature, was equally, if not more so, an act of violence (see, Doe v State of New York, 267 AD2d 913, 918-919, lv denied 95 NY2d 759, Mikoll, J., dissenting ["notwithstanding its ‘sexual nature', rape is preeminently a crime of violence"]; see also, Oberman, Regulating Consensual Sex with Minors; Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 711 [2000] [noting that the term "rape" has been replaced with "criminal sexual assault" in many states reflecting that it is a predominantly violent act]).

Accordingly, the State is ordered to produce for in camera inspection to be conducted in compliance with Brier v State of New York (supra) "all reports and references made, regardless of author,[5] concerning any assaultive or violent behavior between [Ramsey] and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action . . . taken by [State] personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior" (Brier v State of New York, supra, at 788) occurring prior to, and including, the assault which is the subject of this claim.[6] Those records, including the items contemplated in claimant's 4th, 5th, 6th, 7th and 11th demands (White Aff., Exh. C, ¶¶ 4-7, 11), shall be redacted by the Court so that claimant can discover any non-medical data that may exist pertaining to reports of similar violent behavior on the part of Ramsey and bearing upon claimant's allegation that the State had prior notice of Ramsey's assaultive behavior contained in Ramsey's records (see, Lee v New York City Tr. Auth., supra; Exelbert v State of New York, 140 AD2d 665; Katz v State of New York, 41 AD2d 879; Boykin v State of New York, 7 AD2d 819; Villano v State of New York, supra).

Another crucial aspect of this claim is whether and to what extent the State was responsible for--or had any degree of control or any supervisory role over Ramsey during the relevant time period. Put differently, the question is whether the State had a legal duty here and, if so, what this duty entailed. As already observed, the State's position is essentially that Ramsey was not the legal "responsibility of the State" (Wagner Aff., ¶ 18) and that it had no "custody" or "control" over him (Wagner Aff., ¶ 6).

Notwithstanding this contention, Article 13 of the Mental Health Law suggests that the State has deemed the proper care, treatment and provision of services to those with mental retardation as its, or more specifically the Office of Mental Retardation and Developmental Disabilities' responsibility (see, e.g., Mental Hygiene Law §§ 13.01; 13.07 [c]; see also, Kasunic v Webb, ___ F Supp ___, 1990 WL 104005, citing Flowers v Webb, 575 F Supp 1450 [ultimate responsibility for the care of and treatment of the mentally retarded is that of the State notwithstanding utilization of community based voluntary organizations]). Indeed, the fact that non-profit providers of home based habilitation services, such as AIM, are required to comply with the State reporting requirements (see, 14 NYCRR 624.1 [d], 635-10.1 [c]) so as to "enable a governing body (see, 14 NYCRR 624.20 [k]), executives, administrators and supervisors to become aware of problems, to take corrective measures, and to minimize the potential for reoccurrence of the same or similar events or situations" (14 NYCRR 624.2 [b]) buttresses this view. Although Article 13 of the Mental Hygiene Law and the reporting requirements are primarily written from the perspective of protecting the person with mental retardation rather than protecting the public, possible criminal acts or "actions by persons receiving services which are or appear to be a crime" (14 NYCRR 624.4 [6] [emphasis supplied]) are required to be reported.

Claimant's demand for any agreements between the State and any third party providers (AIM) for the five-year period preceding the assault on the infant relating to the care, custody, control or supervision of Ramsey (White Aff., ¶ 6, Exh. C, ¶ 3) does not appear overly broad. If specific agreements exist, they are arguably relevant to whether and to what extent the State maintained a degree of supervision or oversight over Ramsey and must be disclosed. To the extent such information implicates consumer confidentiality concerns as set forth in Mental Hygiene Law § 33.13 or CPLR 4504 (Wagner Aff., ¶¶ 5-6), the Court will review any documents produced in camera before disclosing them to claimant. The Court notes, however, that to the extent such documents contain information regarding the amount of residential habilitation services Ramsey was receiving during this time period, as opposed to strictly medical information, the necessity of establishing whether or to what extent the State oversaw the proper treatment of Ramsey or, possibly, how the State may have responded to any incidents reported to it in compliance with 14 NYCRR 624 necessitates a finding that the interests of justice outweigh the privacy concerns of Ramsey as protected by Mental Hygiene Law § 33.13.[7]

Based on the foregoing, the State is ordered to produce any responsive documents as described in this order for the Court's in camera inspection within forty-five (45) days of the filing date of this order.


December 13, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Ramsey was criminally charged but found to be an incapacitated person pursuant to CPL 730.10 (1) and, accordingly, was turned over to the custody of the Office of Mental Health (Affirmation in Opposition of Belinda A. Wagner, Esq., AAG, dated October 3 and filed October 9, 2001, with annexed Exhibits A-B ["Wagner Aff."], Exh. B). He remains in a secure facility (id., ¶¶ 12, 16).
[2]"Residential habilitation services are generally provided in the person's home, and include assistance with acquisition, retention or improvement in skills related to life safety and fire evacuation; to activities of daily living, such as personal grooming and cleanliness, bed making and household chores, eating and the preparation of food; and social and adaptive skills necessary to enable the person to reside in a noninstitutional setting" (14 NYCRR 635-10.4 [b] [1]).
[3]The Court notes that any such disclosure "shall be kept confidential by the party receiving such information and the limitations imposed by [section 33.13] shall [also] apply to such party" (Mental Hygiene Law § 33.13 [f]).
[4] "Mental retardation is a permanent, relatively static condition . . ., so a determination of dangerousness may be made with some accuracy based on previous behavior" (Heller v Doe by Doe, 509 US 312, 323 [comparing and contrasting mental retardation with mental illness when reviewing Kentucky's involuntary commitment statute] [citations omitted]). Thus, in this case, perhaps more so than in cases involving mental illness, prior incidents involving assaultive behavior on the part of Ramsey would be relevant in terms of establishing notice (see, id., at 323-324).
[5]AIM was required to report "reportable incidents" pursuant to 14 NYCRR 624 (14 NYCRR 624.1 [d], 635-10.1 [c]; see also, Office of Mental Retardation and Developmental Disabilities, providers guide [provided to claimant by defendant in May 2001]).
[6]The State's obligation to produce reports or information regarding prior instances of assaultive behavior will be limited in time, at least at this juncture. The Court, at this point in time, does not deem claimant's institutional records, presumably commencing in 1941 and continuing until Ramsey was deinstitutionalized in 1986, as probative or relevant to establishing notice on the part of the State that Ramsey, who had been living on his own since 1995, was known to be dangerous such that steps should have been taken to prevent further incidents such as, the Court surmises, having him involuntarily admitted to a school (see, Mental Hygiene Law §§ 15.01, 15.27). Accordingly, only records of incidents occurring from 1986 up to and including the date of the subject assault shall be produced for in camera review.
[7]For instance, claimant alleges that his private investigation of Ramsey has revealed that in February 1999, Ramsey was investigated by the New York State Police for an incident of sexual assault resulting in his being charged with sexual abuse in the third degree and endangering the welfare of a child. The case, explains claimant, was assigned case Nos. GSAR99-83 and GSAR99-84 by the State Police. The district attorney allegedly declined to prosecute Ramsey based on his incompetence to stand trial and, claimant continues, it is believed that Ramsey was then placed under 24-hour care with AIM pending his removal to a secure facility (Reply Affidavit of William J. White, Esq., sworn to October 5 and filed October 9, 2001, ¶¶ 6-7). The Court notes that shortly after the alleged incident, the Adjudicated Claims Processing Report for Ramsey shows that the cost of Ramsey's daily services climbed from $40.97 to $60.18, suggesting either an increase in costs or an increase in the services Ramsey was receiving (Response, Exh. A).