New York State Court of Claims

New York State Court of Claims

KUGLER v. THE STATE OF NEW YORK, #2006-030-515, Claim No. 110911, Motion No. M-70847


Synopsis



Case Information

UID:
2006-030-515
Claimant(s):
JOSEPH STEPHEN KUGLER, as Guardian of the Property of LORENE KNEISS
Claimant short name:
KUGLER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110911
Motion number(s):
M-70847
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
PARISI & PATTI, LLPBY: ELIZABETH W. HOBLER, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
February 21, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1 to 6 were read and considered on Claimant’s motion for an Order allowing the release of certain medical records for in camera inspection:
1,2 Notice of Motion; Affirmation by Elizabeth W. Hobler, attorney for Claimant, and attached exhibits

  1. Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General
  2. Reply Affirmation by Elizabeth W. Hobler
5,6 Filed papers: Claim, Answer

According to the Claim filed on May 20, 2005, Claimant is the temporary guardian of the property of Lorene Kneiss, and has served and filed the claim in that capacity. Lorene Kneiss, a former patient in Rockland County Psychiatric Center, was allegedly assaulted on June 25, 2004 when she intervened in an argument between two unknown patients, was pushed by an unknown female patient and fell to the ground sustaining injury to her left hip. Damages in the amount of One Million ($1,000,000.00) Dollars are sought premised upon Defendant’s alleged negligence in failing to protect Ms. Kneiss from an assault by her fellow patients, failing to supervise, and failing to create a policy that would have protected Ms. Kneiss from such an assault.

Claimant now moves for disclosure of the medical records of Ms. Kneiss’ assailants and requests that the Court review same, in camera, to determine what portions, if any, may be released to Counsel. In prior discovery, Defendant indicated that there are no other witnesses to the occurrence other than Ms. Kneiss and the two patients referred to in the redacted incident reports furnished to Claimant. [See Affirmation in Support by Elizabeth Hobler, Exhibit B].
DISCUSSION AND CONCLUSION
Starting from the premise that a party is entitled to “ full disclosure of all matter material and necessary to the prosecution or defense of an action” [See generally Civil Practice Law and Rules §3101], there are nonetheless limits to what may be disclosed particularly when the privacy interests of non-parties who were patients at State mental health facilities are involved.

Thus, absent an express waiver by the two assailants, whose names are redacted in the incident reports already provided to claimant, the medical records maintained by facilities licensed or operated by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities are confidential and privileged, unless the Court determines “ . . . that the interests of justice significantly outweigh the need for confidentiality . . .” Mental Hygiene Law §33.13(c)(1); Civil Practice Law and Rules §§4504, 4507; Sohan v Long Island College Hospital, 282 AD2d 597 (2d Dept 2001); Moore v St. John’s Episcopal Hospital, 89 AD2d 618, 619 (2d Dept 1982). Certainly, when a party alleges that he was assaulted by a mental patient purportedly under State control, disclosure of reports concerning similar violent behavior may be warranted. See Baldwin v State of New York, UID#2001-001-086, Claim No. 103154, Motion No. M-64036 (Susan Phillips Read, P.J., December 13, 2001); Burch v State of New York, UID# 2000-012-512, Claim No. 96119, Motion No. M-60389 (Lane, J., May 8, 2000). A claimant may receive his assailant’s records as they concern any assaultive behavior in confinement prior to the assault at issue, but is not entitled to records pertaining to the assailant’s prognosis and diagnosis. See Mental Hygiene Law §33.13(c)(1); Civil Practice Law and Rules §§4504, 4507; Sohan v Long Island College Hospital, supra; Moore v St. John’s Episcopal Hospital, supra; Mayer v Albany Med. Center Hosp., 37 AD2d 1011 (3d Dept 1971).

Procedurally, the Court determines, after an in camera inspection of the records, exactly what information will be disclosed. Brier v State of New York, 95 AD2d 788 (2d Dept 1983); Villano v State of New York, 127 Misc 2d 761 (Ct Cl 1985); See also Sohan v Long Island College Hospital, supra. The guidelines set forth by the Appellate Division in Brier v State of New York, supra for examining hospital records are:
In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refer to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant’s institution and the length of each stay thereat . . .
As noted by counsel for the Defendant, another issue of concern is whether documents containing this information fall under another privilege limiting the disclosure of documents or reports generated for quality assurance purposes. Education Law §6527(3) exempts three categories of documents from disclosure: (1) records relating to medical review and quality assurance functions; (2) records reflecting participation in a medical and dental malpractice prevention program; and (3) 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.” Clearly, 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 attendant case law has further interpreted the privilege as being in the interest of public policy, to ensure that investigations into incidents occurring at mental health or other health care facilities not be limited by an inability to obtain frank discussion of the incidents at issue that lack of confidentiality would engender. See e.g. Brathwaite v State of New York, 208 AD2d 231 (1st Dept 1995); Smith v State of New York, 181 AD2d 227 (3d Dept 1992); see also Katherine F. v State of New York, 94 NY2d 200 (1999). It is the party who asserts the privilege who has the burden of establishing that the documents were prepared in accordance with the relevant statutes.

Defendant’s arguments, in light of the broad discovery provisions concerning the prosecution and defense of civil actions [See generally Civil Practice Law and Rules §3101], are nonetheless not convincing at this stage, when it appears that information concerning any prior assaultive behavior on the part of the alleged assailants is material and relevant to the prosecution of this claim.

For all the above reasons Defendant is directed to provide the Court with the two alleged assailant’s medical records for one (1) year prior to and including June 25, 2004, within forty-five (45) days of the date of service of a file stamped copy of this decision and order by the Clerk of the Court. After in camera review in accordance with the guidelines set forth in Brier v State of New York, supra, the Court will determine what portions, if any, are subject to disclosure and direct the Defendant accordingly.


February 21, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims