New York State Court of Claims

New York State Court of Claims

MESI v. THE STATE OF NEW YORK, #2007-016-042, Claim No. 110334, Motion Nos. M-73148, M-73184, CM-73198


Synopsis


Claimant, a professional boxer, would have a private cause of action for dissemination of his medical records, which he argued resulted in reduced earnings opportunities, under the statute providing that such records of boxers are confidential (Unconsolidated Law §8912.3).

Case Information

UID:
2007-016-042
Claimant(s):
JOSEPH J. MESI, II
Claimant short name:
MESI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110334
Motion number(s):
M-73148, M-73184
Cross-motion number(s):
CM-73198
Judge:
Alan C. Marin
Claimant’s attorney:
Brown Chiari, LLPBy: Bradley D. Marble, Esq. and James E. Brown, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant’s attorney:

Signature date:
September 21, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In the underlying claim, it is alleged that defendant wrongfully disseminated the medical records of claimant Joseph J. Mesi, II, a professional boxer, to third persons including the media, which published them, with the result that Mr. Mesi suffered decreased fighting and endorsement opportunities.

In motion no. M-73148, claimant moves for an order compelling the deposition of Dr. Barry Jordan, the Medical Director for the New York State Boxing Commission. In motion no. M-73184, claimant moves for an order granting him permission to amend his claim to include a total sum claimed or, in the alternative, for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In cross-motion no. CM-73198, defendant moves for summary judgment dismissing the claim on the ground that it fails to state a total sum claimed and fails to state a cause of action.

The background facts are as follows. On March 13, 2004, claimant participated in a boxing match in Las Vegas. At the time, Mesi was undefeated and ranked among the top contenders for the heavyweight boxing title. Following the fight, the Nevada State Athletic Commission, by letter dated March 19, 2004, suspended claimant subject to medical clearance:
As you are also aware, each boxer who completes a 10-round fight in Nevada may not go back into the gym for at least 21 days and may not compete in a subsequent contest or exhibition for at least 30 days. However, as a result of the competitiveness of the Contest during which you were knocked down three times, the Commission, as a condition of lifting your medical suspensions, is requiring that you be seen and cleared by a neurologist and/or neurosurgeon and that you undergo a repeat MRI of the brain.

Therefore, please forward to the Commission the results of the repeat MRI, the clearance by a neurologist and/or neurosurgeon, and all other medical evaluations performed on you since the contest.


See exhibit D to the May 10, 2007 affidavit of James E. Brown (the “Brown Aff.”).

Mesi then went to Physicians Medical Imaging of Western New York for a series of five brain MRI’s between March 17 and May 27, 2004. In June of 2004, Physicians Medical Imagining sent the MRI reports and a bill for same to the New York State Athletic Commission (“NYSAC”). Hugo Spindola, the Deputy Director and Legal Counsel for NYSAC, had the bill and originals returned with an indication that the Commission had not requested them. However, he retained copies of the MRI report and had them placed in Mr. Mesi’s medical file with the Commission and left them on Dr. Jordan’s desk for review.

Thereafter, in late June 2004, NYSAC received a request from the Nevada Commission, accompanied by an authorization for the release of claimant’s medical file, and Mr. Spindola sent the file, including the MRI reports, as requested.

Meanwhile, on June 18, 2004, the Buffalo News reported that:
Prominent boxing authorities have confirmed seeing medical reports that indicate Mesi underwent repeat MRIs at Physicians Imaging Center of Western New York that displayed bleeding on the surface of his brain in as many as four places after his March 13 fight with Vassiliy Jirov in Las Vegas.

The medical records reveal Mesi’s initial MRI on March 17 showed one subdural hematoma, or bleeding caused by torn blood vessels. An April 8 MRI showed two more subdural hematomas. The trace of a fourth brain bleed also was detected.


See exhibit F to the Brown Aff.

Claimant does not dispute that his medical records were properly sent to the Nevada authorities, but maintains that they were improperly disseminated to the press or third parties that gave them to the press, which then published the June 18, 2004 article. In that regard, claimant seeks the deposition of Dr. Jordan, as he was given copies of the records shortly before the article appeared. Mr. Mesi has one cause of action which is at issue here: “for violation of 19 NYCRR §206.23 and for the negligent release and/or dissemination of confidential medical records to unauthorized third persons and/or the public at large.” See ¶7 of the Brown Aff. The predicate statute for 19 NYCRR §206.23, covering the confidentiality of boxers’ medical records, is found in Title 25 of the Unconsolidated Laws (§8901 et seq.), specifically in subdivision 3 of §8912.

Based in negligence, Mesi’s claim is governed by Chapter 606 of the Laws of 2007, which amended §11.b of the Court of Claims Act to omit the jurisdictional requirement that a total sum claimed be included in the pleadings of lawsuits sounding in personal injury (including medical malpractice) or wrongful death.[1] Consequently, claimant’s motion to amend his claim to include a total sum or to do so via the filing of a late claim is unnecessary.
* * *
The statute at issue, subdivision 3 of Unconsolidated Laws §8912, consists of two sentences. The second sentence, which is identical to 19 NYCRR §206.23 in its entirety, reads as follows:
All medical reports submitted to, and all medical records of the medical advisory board or the commission relative to the physical examination or condition of boxers and wrestlers shall be considered confidential, and shall be open to examination only to the commissioner or its authorized representative, to the licensed boxer or manager upon written application to examine said records, or upon the order of a court of competent jurisdiction in an appropriate case.


The opening sentence of §8912.3 provides that as a condition of being licensed to fight in New York State, any boxer waives the right of confidentiality of medical records relating thereto. This provision is not implicated here, inasmuch as it does not comprehend the kind of disclosure alleged by claimant in this matter - - to persons who are not officers, employees or agents of the Commission.

As to whether claimant has a valid cause of action, in their motion papers, both sides have focused on whether a private right of action exists. A party has a private right of action under a statute:
only if a legislative intent to create such a right of action is fairly implied in the statutory provisions and their legislative history . . . This inquiry involves three factors: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme . . .


Carrier v Salvation Army
, 88 NY2d 298, 302, 644 NYS2d 678, 679 (1996) (citations and internal quotation marks omitted).

The statute in question protects the medical privacy of professional boxers. Obviously, claimant satisfies the first factor as a member of the protected class, and is differently situated than, for example, a boxing promoter or venue that loses a lucrative fight because of a fighter’s medical condition. See Brian Hoxie’s Painting Company, Inc. v Cato-Meridian Central School District, 76 NY2d 207, 557 NYS2d 280 (1990).

As for whether the recognition or creation of an individual right to sue would promote and is consistent with the legislative purpose and scheme, the enabling statute for NYSAC, the governing body for boxing in the State, contains no judicial enforcement provision for the Commission (see Unconsolidated Laws §8906); moreover, defendant offers no authority therefor. This is in contrast with the legislative schema for enforcement that were involved in Carrier, supra and Sheehy v Big Flats Community Day, Inc., 73 NY2d 629, 543 NYS2d 18 (1989).
* * *
As to the deposition of Dr. Jordan, in June 2004, he was provided with copies of Mesi’s MRI’s by Hugo Spindola. Claimant “seeks to question Dr. Jordan with respect to how he received the records, when he received the records and what he did with the records and the information contained therein after his review and any other pertinent information that was not provided by Mr. Spindola or not within his specific knowledge.” See ¶32 of the Brown Aff. The principle governing discovery under the CPLR, that there be “full disclosure of all matter material and necessary” (§3101(a)), is to be liberally construed. See, e.g., Mitchell v Stuart, 293 AD2d 905, 740 NYS2d 250 (3d Dept 2002).
* * *
Accordingly, having reviewed the submissions[2], IT IS ORDERED that motion no. M-73148 be granted and that the parties arrange for the deposition of Dr. Barry Jordan to be conducted within ninety (90) days of the filing of this Decision and Order. IT IS FURTHER ORDERED that motion no. M-73184 be denied as moot. IT IS FURTHER ORDERED that cross-motion no. CM-73198 be denied.



September 21, 2007
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1]. Chapter 606 covers claims that were pending as of November 27, 2003 or filed thereafter. Upon signing the bill, the Governor stated that his approval was contingent upon the Legislature passing an amendment which would advance the effective date to cover claims pending as of August 15, 2007 or filed thereafter (Governor’s Approval Message No. 38).
  1. [2]The following were reviewed: claimant’s notice of motion no. M-73148 with “Attorney’s Affidavit” and exhibits A and B; claimant’s notice of motion no. M-73184 with “Attorney’s Affidavit” and exhibit A; defendant’s notice of motion no. CM-73198 with annexed affirmation and exhibits A through K; defendant’s “Affirmation in Opposition and in further Support of the State’s Motion” filed May 9, 2007; claimant’s “Attorney’s Affidavit” filed May 14, 2007; and defendant’s “Reply Affirmation” filed June 19, 2007.