New York State Court of Claims

New York State Court of Claims

EYBERS v. THE STATE OF NEW YORK, #2005-029-460, Claim No. 108529, Motion No. M-69100


Synopsis


Discovery motion seeking information from State psychiatric hospital.

Case Information

UID:
2005-029-460
Claimant(s):
JOYCE EYBERS
Claimant short name:
EYBERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108529
Motion number(s):
M-69100
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Brand Brand Nomberg & Rosenbaum, LLPBy: Thomas S. Pardo, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 12, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves pursuant to CPLR 3124 for an order directing defendant to provide discovery.

The claim asserts that the State was negligent in allowing claimant to be raped by a fellow patient at the Rockland Psychiatric Center (hereinafter RPC) on August 21, 2001. The claim alleges a failure to (1) provide for the safety of the patients at RPC; (2) enforce its own rules; (3) provide security; and (4) properly supervise its employees and patients.

The motion seeks to compel responses to nine items contained in several different demands. Claimant first asserts that in response to her August 18, 2004 Notice for Discovery and Inspection (Exhibit B attached to Motion Papers), the defendant objected and refused to answer the first item on the grounds of privilege pursuant to Education Law § 6527 (3) and Mental Hygiene Law § 29.29.

The first item at issue states:

"Claimant hereby demands any and all written reports of state and local health officers, inspectors, investigators, nurses and other representatives of state and local health officers, concerning or arising under and in connection with, complaints, alleged violations, investigations, proceedings, actions, authority and orders, related to the enforcement of the Public Health Law, the Sanitary Code or any local health regulation, pertaining to the alleged rape at issue and or the prior ‘sexual contact' incidents specified in the Rockland Psychiatric Center Incident Query Result provided in Defendant's Response to Combined Demands dated April 27, 2004, as Exhibit B thereto. See Public Health Law § 10 (2)." (Exhibit B attached to Motion).


This request is taken almost verbatim from Public Health Law §10 (2) which provides:


"The written reports of state and local health officers, inspectors, investigators, nurses and other representatives of state and local health officers on questions of fact pertaining to, concerning or arising under and in connection with complaints, alleged violations, investigations, proceedings, actions, authority and orders, related to the enforcement of this chapter, the sanitary code or any local health regulation shall be presumptive evidence of the facts so stated therein, and shall be received as such in all courts and places. The persons making such reports shall be exempt from personal liability for the statements therein made, if they have acted in good faith."


Defendant objected to the demand as requesting confidential and privileged information pursuant to Education Law § 6527 (3) and Mental Hygiene Law § 29.29. Proper analysis of the interplay among these statutes must begin with the note that Public Health Law § 10 (2) is an evidentiary statute describing admissibility and presumptions while Education Law § 6527 (3) and Mental Hygiene Law § 29.29 are shield laws which create statutory privileges regardless of admissibility. Defendant also objected to the demand as overbroad, vague, unspecific, irrelevant and unclear and further objected to all portions of the demand that relate to non-party discovery (see Exhibit F attached to Motion).

The defendant has no control over local health officials. To the extent the demand seeks information not in the possession of the defendant which relates to non-party discovery, the motion to compel is denied.

The Court of Appeals stated in Katherine F. v State of New York, 94 NY2d 200 at 204:


"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' ".


A report related to sexual abuse based upon a patient's conduct, as alleged here, is clearly an "incident report" pursuant to Mental Hygiene Law § 29.29 since it concerns "violent behavior exhibited by [a] patient..." Thus, read together, Education Law § 6527 (3) and Mental Hygiene Law § 29.29 exempt incident reports generated in response to allegations of sexual abuse by a fellow patient from disclosure (see Katherine F. v State of New York, 94 NY2d 200 supra at 204).

In his affirmation in opposition, defense counsel asserts that "the materials sought here are not Public Health records nor were the records created pursuant to the Public Health Law" (Affirmation in Opposition, Paragraph 8). This is not the answer the State supplied in response to claimant's Notice for Discovery and Inspection. If this is the State's response, the State is directed to amend its Response to Combined Demands (Exhibit E attached to Motion) accordingly. Pursuant to Public Health Law § 10 (2), if the State has documents prepared by State Health inspectors on questions of fact related to the enforcement of the Public Health Law, such reports should be turned over to claimant or, if the State believes a privilege exists, submit the documents to the Court for in camera inspection, together with the State's privilege log.

Claimant's Item 2 relates to the State's Response to Combined Demands dated April 27, 2004. In response to a request for incident reports the State responded that there was an investigative report of the Office of Mental Health (hereinafter OMH) and attached a copy as Exhibit A. Claimant asserts that the last page of the OMH investigation lists the supporting documentation upon which the report is based and that none of those documents have been produced. Claimant asserts that defendant refuses to provide the supporting documents claiming privilege pursuant to Education Law § 6527 (3) and Mental Hygiene Law § 29.29. Claimant asserts that the burden is upon defendant to establish that the documents are privileged; that defendant has failed to meet its burden and the Court should grant the motion compelling the production of the documents. Defendant asserts that the documents at issue "are privileged and generated for quality assurance and/or risk management purposes of the institution and are therefore exempted from disclosure pursuant to Education Law § 6527 (3)" (Affirmation in Opposition, Paragraph 26).

OMH Special Investigation #158436 (Exhibit A attached to the State's Response to Combined Demands dated April 27, 2004) was prepared by a Risk Management Specialist and was reviewed by a Risk Manager. The Appellate Division, Second Department, has recently stated in Marte v Brooklyn Hosp Ctr., 9 AD3d 41 at 45:

"Education Law § 6527 (3) pertains to the practice of medicine. The statute covers the liability of individuals who serve on medical review committees, such as committees formed for the prevention of medical malpractice under Public Health Law § 2805-j...(see Education Law § 6527 [3][d], [e]). The section states:

‘...nor any report required by the department of health pursuant to [Public Health Law § 2805-l]... including the investigation of an incident reported pursuant to [Mental Hygiene Law § 29.29], shall be subject to disclosure under [CPLR article 31] except as hereinafter provided or as provided by any other provision of law.' (Education Law § 6527 [3]).


Public Health Law § 2805 pertains to hospitals. Section 2805-l requires hospitals to report certain incidents to the Department of Health. Among the "reportable" incidents set forth are the following:


‘2...(a) patients' deaths or impairments of bodily functions in circumstances other than those related to the natural course of illness, disease or proper treatment...;' "


In Marte (supra), the Appellate Division found that a hospital would be required to report an assault of a patient by a staff member "as an impairment to the patient's bodily functions in circumstances other than those related to the natural course of [her] illness" (id at 46). The Court concluded:

"Certainly, an alleged assault upon a patient is one of these ‘other situations' which threatens the safety of patients and staff, and would therefore be required to be reported. In the case of Katherine F. v State of New York (94 NY2d 200, 205 [1999]), the Court of Appeals recognized the Education Law § 6527 (3), by incorporating Public Health Law § 2805-l, ‘require[s] hospitals to report incidents that extend well beyond medical care and treatment.' Therefore, the Hospital was required to investigate and report the assault of the plaintiff to the Department of Health under Public Health Law § 2805-l.


However, the fact that the Hospital was required to report the incident does not necessarily mean that it did so, or that all the documents sought by the plaintiff are exempt from disclosure. It is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes (see Orner v Mount Sinai Hosp., 305 AD2d 307 [2003]; Crawford v Lahiri, 250 AD2d 722 [1998]; Van Caloen v Poglinco, 214 AD2d 555 [1995]" (see Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, supra at 46).


A review of defense counsel's affirmation in opposition and the attached documents does not reveal any statement by defendant that OMH actually prepared the incident report for the Department of Health as required under Public Health Law §2805-l. As in Marte (supra), the defendant failed to establish its burden that the document at issue was prepared under Public Health Law § 2805-l and/or Education Law § 6527 (3). The demanded statements may, in fact, be subject to privileges under Public Health Law § 2805-l and Education Law § 6527(3), and/or CPLR 4504, the physician/patient privilege, and/or the Federal Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA). For example, if the revelation of a patient's location in a hospital would, by simple deduction, also reveal that patient's medical status, such discovery would run afoul of CPLR 4504 and the legislative intent of HIPAA (see Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 772 NYS2d 714).

The Court directs that, within 30 days of the filing of this decision and order, the defendant is to submit to the Court and claimant an affidavit from a person with knowledge of the preparation of the OMH incident report so that the Court may properly determine whether OMH conducted the review process in accordance with Public Health Law § 2805-l. The Court will then conduct an in camera review of the documents for which the defendant asserts a privilege under Education Law § 6527 (3) and Public Health Law § 2805-l, as well as CPLR 4504. Defendant is directed to heed the advice of the Second Department as stated in Marte v Brooklyn Hosp. Ctr., (9 AD3d 41, 48):

"A recent decision by the Court of Appeals entitled Matter of Subpoena Duces Tecum to Doe, (99 N.Y.2d 434 [2003]) provides guidance regarding which records utilized by a hospital quality assurance committee would be privileged and which would be subject to disclosure. Records generated at the behest of a quality assurance committee for quality assurance purposes, including compilations, studies or comparisons derived from multiple records, should be privileged, whereas records simply duplicated by the committee are not necessarily privileged. The Court of Appeals also stated:


‘We recommend that a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review. The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege.' (Matter of Subpoena Duces Tecum to Doe, supra at 442.)"


If a "privilege log" exists, it is to be submitted to this Court.

The third item claimant seeks are names and addresses of witnesses demanded in the Notice for Discovery and Inspection dated March 10, 2004 (see Exhibit A attached to Motion). In response, defendant's counsel stated he was unaware of any witnesses to the occurrence. Claimant asserts that it is clear from a review of the OMH Investigation Report (attached to her Motion as Exhibit E and discussed above) that "there are several people who allegedly witnessed events and or conduct relevant to the claimed rape" (Pardo Affirmation in Reply, Paragraph 9). It is the identity of these witnesses that claimant seeks.

It is readily apparent that both sides interpreted "witnesses to the occurrence" differently. Defendant interpreted the demand literally and provided a response accordingly. I find the response to be proper. Claimant interpreted the demand more broadly, to include witnesses to events relevant to the claimed rape. Claimant has a copy of the OMH Investigation Report containing the names of the State employees present. Claimant should make a further demand and request whether the named individuals are still employees of the defendant and, if so, their business address or, if not, their last known address. The OMH report also contains the names of three patients who supplied statements regarding the incident. The names of the patients have been redacted. Claimant's counsel concedes that Mental Hygiene Law § 33.13 prohibits the identification of mental health patients. However, he asserts, the privilege may be waived where the interests of justice significantly outweigh the need for confidentiality (Mental Hygiene Law § 33.13 (c) [1]). Other than this general and conclusory statement citing the statute, claimant has not made any showing that the need for confidentiality of the identity of mental health patients should be waived in this instance. The request to compel a response to Item 3 is denied.

Claimant asserts that Item 4 is now moot as the requested information has been provided.

Turning to Item 5, in her Notice for Discovery and Inspection dated March 10, 2004, claimant requested the complete "medical, criminal, and any other file maintained by the State of New York concerning Miguel Lebron", the alleged assailant (March 10, 2004 Demand for Discovery and Inspection, Exhibit A attached to Motion). In its April 27, 2004 response, the defendant objected to the demand claiming the items are confidential and privileged (Exhibit E attached to Motion).

In Sohan v Long Is. Coll. Hosp. (282 AD2d 597 at 598), the Appellate Division, Second Department stated that clinical information tending to identify patients or clients and clinical records maintained at a facility licensed or operated by OMH shall not be released except pursuant to a court order requiring disclosure upon a finding that the "interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13 [c] [1]; [e]). In addition, the Court held:

"... the [motion Court] erred in directing the defendant to redact confidential information. The proper procedure is for the [motion Court] to conduct an in camera review of the assailant's records, and determine if they contain information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant that should be disclosed (see, Moore v St. John's Episcopal Hosp., 89 AD2d 618; Brier v State of New York, 95 AD2d 788; Villano v State of New York, 127 Misc 2d 761; see also, Lee v New York City Tr. Auth., 257 AD2d 611; Matter of Ashford v Brunswick Psychiatric Ctr., 90 AD2d 848; Mayer v Albany Med. Ctr. Hosp., 37 AD2d 1011)" (Sohan v Long Is. Coll. Hosp., 282 AD2d 597 at 598).


Based upon the above, defendant is directed to submit to the Court a copy of Mr. Lebron's medical records within thirty (30) days of the date of filing of this decision and order. The Court will conduct an in camera review of the records to determine if they contain information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant that should be disclosed. Defendant is also directed to submit to the Court a copy of Mr. Lebron's criminal records maintained by OMH within thirty (30) days of the date of filing of this decision and order so that the Court may review those records in camera and determine if they contain confidential information pursuant to CPL § 390.50.

Claimant asserts that Item 6 is now moot as the State has responded that the requested records are not maintained by the State.

Turning to Item 7, in her Notice for Discovery and Inspection dated March 10, 2004, under the heading "Demand for Incident Reports", claimant requested all incident reports in defendant's possession covering 6 subcategories (labeled "a" through "f").

Subcategory "f" requested all writings evidencing any allegations made by claimant other than the present claim that she had been raped or sexually assaulted. The defendant's response to this demand was that the "[d]efendant is not in possession of this information at this time" (see Defendant's Response to Combined Demands dated April 27, 2004, Exhibit E attached to motion). Defendant reserved the right to amend or supplement the response. Claimant asserts in her motion papers that defendant has not yet supplemented this response and requests an order compelling such response. In the motion papers, claimant does not state she is seeking a response to her March 10, 2004 Notice for Discovery and Inspection, labeled "Demand for Incident Reports" subcategory "f". The motion papers assert that in the March 10, 2004 Notice for Discovery and Inspection claimant requested all writings evidencing allegations made by claimant, other than the claim at issue, that she was raped or sexually assaulted (Pardo Affirmation, Paragraph 19). In opposition to the motion, the State's attorney responds that there is a February 9, 2000 incident report in which claimant made allegations in the nature of sexual abuse and/or neglect. He refers to his response to Incident Reports subcategory "d" contained in Exhibit E attached to the motion papers (Cascio Affirmation in Opposition, Paragraph 43). It is apparent that the defendant thought claimant was referring to subcategory "d" and not subcategory "f". This confusion is understandable as a result of claimant's lack of specificity as to which subcategory of "Incident Reports" she is seeking to compel a response. I have reviewed defendant's response to subcategory "f" and find nothing improper in the response and reservation of the right to supplement or amend the response. The request to compel is denied as to this item.

Turning to Item 8, in her Notice for Discovery and Inspection dated March 10, 2004, claimant requested under the heading "Demand for Protocols" any manuals or records on procedures, guidelines, protocols and policies for defendant's facility in effect on August 21, 2001 concerning four separate subcategories (labeled "a" through "d"). In response to this demand, in its April 27, 2004 Response to Combined Demands the State attached copies of the hospital policy and procedure incident review manual on the topics of incident reporting and investigation and sexual assault/sexual contact (see Response to Combined Demands and Exhibit F attached thereto [Exhibit E attached to Motion]).

Claimant served upon defendant two other Notices for Discovery and Inspection dated September 1, 2004 and September 17, 2004 wherein she requested information regarding an index of manuals or records on procedures, guidelines, protocols and policies in effect at the hospital on August 21, 2001 as well as any manuals or records on procedures, guidelines, protocols and policies in effect at the hospital on August 21, 2001 concerning six subcategories of items (labeled "a" through "f") and an index of manuals or records on procedures, guidelines, protocols and policies in effect at the hospital on August 21, 2001 as well as any manuals or records on procedures, guidelines, protocols and policies established by OMH or any other office of the State of New York for the management of mental health institutions under its supervision, in effect on August 21, 2004 (Exhibits C and G respectively, attached to Motion).

I find that the State's response to claimant's March 10, 2004 demand is proper. The current motion papers are dated September 17, 2004. The motion was originally returnable October 13, 2004. At the State's request, it was adjourned to October 27, 2004 and at the claimant's request, to November 24, 2004. Both the September 1 and September 17, 2004 Notices for Discovery and Inspection state that pursuant to CPLR 3101, the State is required to furnish responses within 20 days. Therefore, the State's responses to both these notices were not required until after the motion papers were prepared and mailed to the Court and served upon defendant. Claimant's counsel admits that defendant's time to respond to the September 17, 2004 Notice for Discovery and Inspection (Exhibit G attached to Motion) had not yet expired as of the date of his affirmation in support and he included the "item for the purpose of efficiency so as to obviate the need for any future motion practice arising out of any pending discovery matters" (Pardo Affirmation in Support, Paragraph 22, Footnote 1 and Affirmation in Reply, Paragraph 16, Footnote1).

Pursuant to the Uniform Rules for the Court of Claims § 206.8 (b), no motion relating to disclosure shall be placed on the calendar without counsel for the respective parties first conferring with the assigned Judge. Here, the Court held a discovery conference with counsel for the parties on June 30, 2004. Obviously, any issue raised in a discovery notice prepared in September 2004 was not discussed at the June 2004 conference. Therefore, I find that this portion of the motion is premature as the parties have not held a discovery conference with the Court prior to making this motion. The motion to compel a response to Item 8 is denied.

Claimant asserts that Item 9 is now moot as the State has responded that no such materials exist.

Therefore, claimant's motion to compel is granted in part and denied in part as set forth herein above.

The following papers were read on claimant's motion to compel responses:

Papers Numbered


Notice of Motion, Attorney's Affirmation
and Exhibits Attached 1


Affirmation in Opposition and
Exhibit Attached 2

Attorney's Affirmation in Reply 3


Filed Papers: Claim and Answer


January 12, 2005
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims