DICKSON v. THE STATE OF NEW YORK, #2002-015-220, Claim No. 102105, Motion No.
Court directed in camera inspection of records of mental hygiene
facility to determine whether records contained potentially discoverable
material related to prior notice of assailant's dangerous propensities.
WILLIAM DICKSON AND DARIENNE DESALVO
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
The LaFave Law Firm, PLLCBy: Elissa R. Topolski, Esquire
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
February 11, 2002
See also (multicaptioned
Claimants' motion pursuant to CPLR 3124 and Mental Hygiene Law § 33.13 for
an order compelling the disclosure of certain documents and the production of
specified witnesses to be deposed at examinations before
is granted in part and denied in part as
set forth below. The claim seeks money damages for personal
sustained by claimant William Dickson
at approximately 8:30 a.m. on November 19, 1998 at the Capital District
Psychiatric Center, a State operated mental health facility in Albany, New York.
According to the allegations set forth in the claim Dickson was attacked and
beaten by a patient at the facility. The details of the attack which were
alleged in paragraph six of the claim are as follows:
That said injuries and damages for which claim will be made arose in the
following manner: A patient of the Capital District Psychiatric Center
assaulted another patient, which required the nurse to call for assistance,
which Claimant provided to the nurse. The patient was then escorted to a
secluded room and it was determined the patient would need to be medicated to
calm down the patient. The patient refused medication, and it was decided that
the patient would have to have the medication injected. At this time, the
patient struck the nurse, and Claimant intervened, and was subsequently struck
in the face by the patient. The patient then wrestled Claimant to the floor,
and the patient then slammed Claimant's head on the concrete floor a couple of
times, before other staff entered the room and was [sic] able to subdue
Claimant allegedly sustained injuries to his spinal cord and left shoulder and
arm as a result of the incident. Pursuant to a decision and order dated
February 10, 2000 claimants were granted late claim relief and the instant claim
was filed on March 10, 2000. The State's answer was filed on April 25, 2000.
The attorneys for the parties were unable to resolve certain differences
related to discovery and claimants' attorney now moves for a court order
compelling the production of documents and certain witnesses employed by the
State in order that they may be deposed. The State opposed the motion but did
not cross-move for a protective order pursuant to CPLR § 3103.
The Court's examination of the motion will start with claimants' demand that
the State produce Paul Santo, Paul Shapiro and Kathy Elbrecht for deposition.
Claimants' papers initially submitted on the motion merely list Paul Shapiro and
Kathy Elbrecht among others named in a notice to take depositions (see
counsel's affirmation paragraph "8"). The claimants' motion papers identify
Paul Shapiro only as a psychologist injured restraining a patient (see
counsel's affirmation paragraph "10," Demand 10); and fail to further identify
Kathy Elbrecht by job title or position. Even defense counsel's affirmation in
opposition to the motion fails to explain who Kathy Elbrecht is except to say
that she "was not working on the in-patient side at the time of the incident and
her involvement was post-incident" (see defense counsel's affirmation,
paragraphs "16" and "17"). On this record the Court cannot determine that Kathy
Elbrecht's testimony might be relevant, material and necessary to the
prosecution of this claim and therefore denies claimants' request for an order
directing the defendant to produce her for examination before trial.
Defense counsel objected to the production of Paul Santo, who she identified as
"a nurse assaulted prior to the incident at issue" (counsel's affirmation in
opposition paragraph "17"), on the grounds that his testimony is irrelevant.
The Court notes that defense counsel had previously advised claimants' attorney
that Paul Santo had left State employment and was, therefore, not subject to the
defendant's control. Santo's subsequent return to State employment permits the
issuance of an order compelling his attendance and, since Santo may have
factual information material and necessary to the issues raised by the claim,
he should be produced at a mutually agreed time and place. Upon examination his
testimony will, of course, be subject to any statutory privilege applicable
thereto arising out of Education Law § 6527 (3) and Mental Hygiene Law
§ 29.29. Claimants' request for an order compelling the deposition of Paul
Santo is, therefore, granted.
Paul Shapiro has been identified by defense counsel in her affirmation in
opposition as "a psychologist [who] had an office located in the same area as
the seclusion room and came to the assistance of Ms. Harper and Mr. Dickson."
Assuming this information to be correct, Shapiro's status as a potential
eyewitness to the incident argues in favor of his production for examination and
claimants' motion compelling his appearance is granted unless it can be
demonstrated that he is no longer employed by the defendant.
Claimants also seek a judicial determination regarding the following demands
for document production:
Demand 1: All Prior records, including incident reports, of workers and/or
staff members being injured and/or assaulted at the Crisis Intervention Unit at
Demand 3: Orientation and training for the CDPC staff about and concerning the
new Unit including the seclusion room where the Claimant was injured.
Demand 6: The entry in the chart of the patient who assaulted claimant
concerning that assault, and the hospital record chart of the patient at issue,
including his date of admission, his prior history, the records, and orders, and
instructions in the chart, and the entries and observations of the CDPC staff
concerning the patient.
Demand 9: Records of the following changes made to CDPC area at issue following
claimant's injuries: a) Adding of 2 monitors in the main workplace; b) Outside
security agency review; c) Altered means of egress to the unit; d) Moving
patients to the main unit from the crisis intervention unit; e) Placing a safety
person in the Crisis Intervention Unit 24 hours a day; f) Added personal safety
alarms; g) Budget or other financial planning memos detailing the reason why the
additional items had to be funded and paid for.
Demand 10: Records of the assaults of, or committed by the following
individuals: a. Diane Harper (nurse asking for claimant's help), b. Shamal Davis
(the assaulting person), c) Paul Santo (nurse previously injured), d. Paul
Shapiro (psychologist injured restraining a patient).
Demand 11: The prescribed Treatment Plan Intervention for the patient who
assaulted the claimant.
Demand 12: The staff attending order allowing "stat" medication, or any other
physician order allowing a nurse to administer any type of anti-agitation or
anti-anxiety medication to the patient at issue at the time of the injury.
Demand 13: All CDPC 802 Part III Restraint & Seclusion Porgress
[sic] Note/Monitoring Forms for the patient at issue during his stay at
Demand 14: Notes of all debriefing sessions with the patient concerning the
incident at issue.
Demand 17: The notes on [sic] the incident review committee on the
incident at issue in the case, and all prior incidents where staff members were
struck or injured by patients, from the time period of 1996 to the date of the
The discoverability of reports contained in a psychiatric hospital's
investigation file related to an alleged assault by a patient is governed by
Education Law § 6527 (3), Mental Hygiene Law § 29.29 and Public Health
Law § 2805 - l.
Section 29.29 of the Mental Hygiene Law requires the commissioners of the
Office of Mental Health and the Office of Mental Retardation and Developmental
Disabilities to establish policies and procedures for the compilation and
analysis of incident reports. Included among those policies and procedures is
the establishment of a patient care and safety team at the facility level to
investigate and report to the director of the facility regarding the following:
suicides or attempted suicides; violent behavior exhibited by either patients or
employees; frequency and severity of injuries incurred by either patients or
employees; frequency and severity of injuries occurring on individual wards or
in buildings at such facility. Cumulative record keeping requirements are also
imposed concerning incident reports involving patients and/or employees.
Incident reports related to violent behavior perpetrated by a patient against a
county employee stationed at the Capital District Psychiatric Center, a facility
subject to the incident reporting procedures contained in Mental Hygiene Law
§ 29.29 (see, Mental Hygiene Law § § 1.03 and 7.17[b]),
would be subject to investigation by the facility's patient care and safety
team. Any such reports would, in turn, be exempt from disclosure by operation
of the prohibition contained in Education Law § 6527 (3) discussed
The Court of Appeals recently addressed the application of these statutes in a
case involving the alleged sexual abuse of a minor patient by a psychiatric
hospital staff member in Katherine F v State of New York (94 NY2d 200)
where it affirmed the Appellate Division's reversal of an order which had
directed the disclosure of the psychiatric hospital's investigation file,
including incident reports by designated staff and an incident or investigation
report prepared by a State agency regarding violent behavior by the employee.
In its decision the Court of Appeals offered the following statutory analysis at
Education Law § 6527 (3), which exempts certain records from the discovery
provisions of article 31 of the Civil Practice Law and Rules, provides:
'Neither the proceedings nor the records relating to performance of a medical
or quality assurance review function or participation in a medical and dental
malpractice prevention program nor any report required by the department of
health pursuant to section twenty-eight hundred five-l of the public health law
described herein, including the investigation of an incident reported
pursuant to section 29.29 of the mental hygiene law, shall be subject to
disclosure under article thirty-one of the civil practice law and rules'
(Education Law 6527  [emphasis added]).'
The language of the statute is unequivocal. Education Law § 6527 (3)
exempts three categories of documents from disclosure: records relating to
medical review and quality assurance functions; records reflecting
'participation in a medical and dental malpractice prevention program;' and
reports required by the Department of Health pursuant to Public Health Law
§ 2805-l, including incident reports prepared pursuant to Mental Hygiene
Law § 29.29. Incident reports are defined as 'reports of accidents and
injuries affecting patient health and welfare' (Mental Hygiene Law §
29.29). Included in such reports are any allegations of 'violent behavior
exhibited by either patients or employees' (Mental Hygiene Law § 29.29 
[ii]). A charge of sexual abuse based on an employee's conduct, as alleged
here, falls squarely within this category. Thus, read together, Education Law
§ 6527 (3) and Mental Hygiene Law § 29.29 exempt from disclosure
incident reports generated in response to allegations of sexual abuse by an
* * *
Nothing in the plain language of Education Law § 6527 (3) or its
legislative history indicates that the quality of care should be read to exclude
reports of patient abuse. To the contrary, in 1986, the Legislature
specifically amended section 6527 (3) to expand the exemption to include reports
prepared by hospitals pursuant to Public Health Law § 2805-l and Mental
Hygiene Law § 29.29 (see, L 1986, ch 266; L 1986, ch 427). Both
statutes require hospitals to report incidents that extend well beyond medical
care and treatment. Public Health Law § 2805 -l requires hospitals to
investigate and report on patient injuries caused by fires, poisoning and
equipment malfunction (see Public Health Law § 2805-l  [b], [c],
[d]). Similarly, Mental Hygiene Law § 29.29 establishes procedures for
reporting incidents that affect a patient's health and welfare, including an
employee's violent behavior. In 1992, section 29.29 was amended to include, as
part of its incident reporting procedures, numerous provisions for identifying
and resolving the abuse and maltreatment of children in residential care (Mental
Hygiene Law § 29.29  [a]-[f]; ). By referring to section 29.29 in
Education Law § 6527 (3), the Legislature concluded that quality of care
concerns include investigations of patient abuse.
Our conclusion is consistent with the overall purpose of Education Law §
6527 (3). The thrust of section 6527 (3) is to promote the quality of care
through self-review without fear of legal reprisal. * * * By ensuring the
confidentiality of incident reports, Education Law § 6527 (3) enables a
psychiatric hospital 'to ameliorate the causes of untoward incidents' through
'unfettered investigation[s]' (Letter of Commn on Quality of Care for the
Mentally Disabled, dated July 17, 1986, Bill Jacket, L 1986, ch 427, at
The Court of Appeals' analysis concluded with the following finding:
All of these reports were compiled by hospital personnel as part of an internal
investigation into allegations of child sexual abuse and, as such, are clearly
exempt from disclosure under Education Law § 6527 (3).
Applying Education Law § 6527 (3) as interpreted by the Court of Appeals
it becomes clear that the reports and other documents sought in claimants' above
listed demands numbered
"1", "10", and "17" are exempt from disclosure. Demands numbered "11"and "12"
seek information related to the patient's medical treatment and as such are
exempt from disclosure under well-established case law excepting a psychiatric
patient's medical information including "reports and references concerning
physical and psychological examinations, the results thereof, prognosis,
diagnosis and treatment" ( Brier v State of New York, 95 AD2d 788; Lee
v New York City Tr. Auth., 257 AD2d 611). Claimants' Demand 3, addressed to
staff orientation and training regarding the new [crisis] unit, including the
seclusion room, is discoverable if limited to orientation and training
materials utilized during the two year period preceding the incident date. To
the extent that such records exist and have not yet been provided they shall be
made available to claimants' attorney within 20 days of receipt of this decision
The records sought in Demand 6 shall be supplied to the Court for an in
camera inspection within 20 days of receipt of this decision and order and
will thereafter be provided to claimants' attorney as the Court shall direct
(see, Sohan v Long Is. Coll. Hosp., 282 AD2d 597). The Court
finds that the materials requested in Demand 9 which relate to possible
post-incident changes to the facility and the adoption of remedial measures by
the center are neither discoverable nor admissible in a negligence case absent
an issue of maintenance or control not raised here (Angerome v City of New
York, 237 AD2d 551; Cleland v 60-02 Woodside Corp., 221 AD2d 307).
Claimants' motion to compel production of the items listed in Demand 9 is
Finally, the Court finds that the information sought in demands "13" and "14"
may contain potentially discoverable material and therefore directs that such
material be submitted for in camera inspection within 20 days of receipt
of a copy of this decision and order.
As noted above (see footnote 1) claimants' attorney through the
submission of supplemental affirmations unaccompanied by a notice of motion
seeks a judicial determination regarding the refusal of Nurse Diane Harper to
answer specific questions posed at a deposition begun on August 30, 2001 and
concluded on October 29, 2001. Counsel also seeks a ruling from the Court with
regard to claimants' notice to produce documents and claimants' notice for
discovery and inspection dated November 2, 2001, both of which were served
simultaneously with counsel's supplemental affirmation of the same date. These
requests addressed to the newly served notices were opposed by defense counsel
as improper and, with regard to the newly served notices, premature since
defense counsel was not afforded an opportunity to respond to such newly served
notices prior to the improper submission of the matter to the Court.
Claimants' counsel's action in this regard is not countenanced by the CPLR and,
in fact, is violative of its provision requiring that a notice of motion be
served when applying for an order (CPLR § 2211; see, Myung Chun v
North Am. Mtge. Co., 285 AD2d 42; Lebovits v PSFB Assocs., 168 AD2d
785). In addition, counsel's actions in this regard also violate section 206.8
(b) of the Uniform Rules for the Court of Claims which provides that "[n]o
motion relating to disclosure shall be placed on the calendar without counsel
for the respective parties first conferring with the assigned judge." Counsel's
attempt to short circuit this procedural rule with regard to new items of relief
sought in the name of judicial economy and efficiency is improper and the
additional relief sought in counsel's supplemental affirmations, therefore, is
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
The Court considered the following papers:
Notice of motion dated October 23, 2001;
Affirmation of Elissa R. Topolski dated October 22, 2001, with exhibits;
Affirmation of Elissa R. Topolski dated November 5, 2001, with exhibits;
Affirmation of Elissa R. Topolski dated November 7, 2001, with exhibits;
Affirmation of Belinda A. Wagner dated November 14, 2001;
Affirmation of Elissa R. Topolski dated November 20, 2001.
The attempt of claimants' counsel to obtain an
order directing a witness already deposed to answer specific questions which she
refused to answer on the advice of counsel was not accompanied by a notice of
motion and therefore is not properly before the Court (Myung Chun v North
American Mtg. Co.
, 285 AD2d 42; Guggenheim v Guggenheim
, 109 AD2d
1012; Lebovits v PSFB Assocs.
, 168 AD2d 785). Nor may the Court issue an
advisory opinion based on counsel's anticipated responses to additional
discovery notices served on the defendant during the pendency of this motion
Claimant's wife's derivative claim seeks to
recover for the loss of her husband's services.