New York State Court of Claims

New York State Court of Claims

DICKSON v. THE STATE OF NEW YORK, #2002-015-220, Claim No. 102105, Motion No. M-64223


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.

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:
The LaFave Law Firm, PLLCBy: Elissa R. Topolski, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 trial[1] is granted in part and denied in part as set forth below. The claim seeks money damages for personal injuries[2] 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 the patient.
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 CDPC.

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 CDPC.

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 incident.
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 below.

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 page 203:

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 [3] [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 [1] [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 employee.

* * *

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 [2] [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 [6] [a]-[f]; [8]). 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 15).
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 and order.

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 denied.

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 denied.

February 11, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 23, 2001;
  2. Affirmation of Elissa R. Topolski dated October 22, 2001, with exhibits;
  3. Affirmation of Elissa R. Topolski dated November 5, 2001, with exhibits;
  4. Affirmation of Elissa R. Topolski dated November 7, 2001, with exhibits;
  5. Affirmation of Belinda A. Wagner dated November 14, 2001;
  6. Affirmation of Elissa R. Topolski dated November 20, 2001.

[1]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 (see discussion, infra).
[2]Claimant's wife's derivative claim seeks to recover for the loss of her husband's services.