New York State Court of Claims

New York State Court of Claims

BURKE v. THE STATE OF NEW YORK, #2004-031-161, Claim No. 99464, Motion Nos. M-69035, M-69036


Synopsis


Claimant's motion to compel disclosure of his medical record is granted. Claimant's motion seeking judicial subpoenas is denied

Case Information

UID:
2004-031-161
Claimant(s):
PATRICK T. BURKE
Claimant short name:
BURKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99464
Motion number(s):
M-69035, M-69036
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
PATRICK T. BURKE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 29, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on two motions by Claimant, the first for an order compelling disclosure of Claimant's medical record, the second seeking judicial subpoenas:
1. Notice of Motion (M-69035), filed September 2, 2004;
2. Claimant's Affidavit (M-69035), sworn to August 26, 2004;
3. Notice of Motion (M-69036), filed September 2, 2004;
4. Claimant's Affidavit (M-69036), sworn to August 26, 2004
  1. Correspondence of William D. Lonergan, Esq., dated September 14, 2004;
6. Affidavit of William D. Lonergan, Esq., sworn to October 9, 2004, with attached exhibit;
7. Claimant's Reply Affidavit, sworn to October 18, 2004. In his underlying claim in this matter, filed on December 9, 1998, Claimant alleges various causes of action which allegedly accrued at Gowanda Correctional Facility ("Gowanda") and relate to his medical conditions, including harassment, violation of the Americans with Disabilities Act, and medical malpractice. In his first motion, M-69035, Claimant seeks legible copies of his medical records. In the second motion, M-69036, Claimant seeks judicial subpoenas for the doctor that treated him at Gowanda, an unnamed nurse, and a doctor that treated him subsequently at Cayuga Correctional Facility.
CLAIMANT'S MOTION FOR MEDICAL RECORDS
In motion M-69035, Claimant requests legible copies of his medical records. In its response to the motion, Defendant has offered to provide Claimant with his medical records for the year of 1998, the year in which the claim allegedly accrued. Claimant, however, argues that the treatment, or lack thereof, of which he complains continued until he left Gowanda in April of 2000 and, therefore, requests his medical records through this period. I find that Claimant's request is reasonable and direct that Defendant provide Claimant with a copy of his medical records from January 1, 1998 through April 30, 2000. Claimant is, of course, required to pay Defendant reasonable copying charges for these documents (see e.g. Gittens v State of New York, 175 AD2d 530).
CLAIMANT'S MOTION FOR JUDICIAL SUBPOENAS
Claimant has requested subpoenas for three individuals: Dr. Kurtz, whom Claimant alleges is responsible for the alleged malpractice; an unnamed nurse, whom Claimant alleges improperly flushed out Claimant's ears; and Dr. Bartleson, whom Claimant alleges treated him after he was transferred from Gowanda.

With regard to Dr. Kurtz, Defendant opposes the motion, asserting that he is retired and no longer an employee of Defendant. Commendably, however, Defendant has contacted Dr. Kurtz and he has indicated that he will voluntarily testify without the need of a subpoena. Defendant opposes the issuance of a subpoena for the unnamed nurse and Dr. Bartleson. With regard to the factual matters alleged in the claim, I find that the testimony of Dr. Kurtz is sufficient for Claimant's purposes. Claimant has provided no reason that the testimony of the unidentified nurse is necessary for the prosecution of his claim. In fact, as Defendant points out, the claim alleges that Claimant's ears were flushed out by Dr. Kurtz and not a nurse.

With regard to Claimant's request for a subpoena for Dr. Bartleson, Defendant asserts, and Claimant implicitly admits, that Claimant intends to use Dr. Bartleson as his expert witness. In such instances, a subpoena compelling expert testimony is not appropriate. Claimant should understand that an "[e]xpert witness [such as a physician] can be subpoenaed to testify to facts within [his] [own] knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require employment of the expert's expertise, education, judgment or opinion in the expert's particular field of expertise" (Blake v State of New York, Ct Cl, March 1, 2000 [Claim No. 85065, M-61001], Lebous, J., UID #2000-019-501). Eliciting expert opinions at trial requires that Claimant make arrangements with a witness before trial, including negotiation of any expert witness fee. For these reasons, I find that Claimant's request for judicial subpoenas should be denied.

Accordingly, it is hereby

ORDERED, that Motion No. M-69035 is GRANTED, and Defendant is directed to provide to Claimant, upon receipt of payment from Claimant of appropriate photocopying charges, Claimant's medical record from January 1, 1998 through April 30, 2000; and it is further
ORDERED
, that Motion No. M-69036 is denied in its entirety.

November 29, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims