New York State Court of Claims

New York State Court of Claims

MEDINA v. THE STATE OF NEW YORK, #2008-045-020, Claim No. 114230, Motion Nos. M-74396, M-74475


Synopsis


defendant’s motion to dismiss for failure to state a cause of action regarding DOCS regs for releasing medical records. claimant’s motion for summary judgment.

Case Information

UID:
2008-045-020
Claimant(s):
ANTHONY MEDINA
Claimant short name:
MEDINA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114230
Motion number(s):
M-74396, M-74475
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Anthony Medina, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 13, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on these motions: Defendant’s Notice of Motion to Dismiss, Defendant’s Affirmation in Support with annexed Exhibits A-C, Claimant’s Affirmation in Opposition, Claimant’s Notice of Motion for Summary Judgment, Claimant’s Affidavit in Support of Motion for Summary Judgment and Defendant’s Affirmation in Opposition with annexed Exhibits A-D. Defendant, the State of New York, has moved to dismiss the claim in this matter pursuant to CPLR 3211 for failure to state a cause of action. Claimant, Anthony Medina, a pro se inmate, has opposed this motion. Claimant has also filed a separate motion to strike defendant’s affirmative defenses and for an order of summary judgment in his favor.

The claim, filed on September 13, 2007, alleges that defendant, through its agents, improperly and without authorization released claimant’s medical records to the Office of the Attorney General. The medical records were released in connection with the legal defense of a separate Article 78 proceeding initiated by claimant in the New York State Supreme Court. Claimant also contends in his claim that a portion of the released medical records were not related to the Article 78 proceeding.

The Article 78 proceeding was brought by claimant to challenge the correctional facilities’ denial of his request for specific medical treatment. Defendant used portions of claimant’s medical records to establish that claimant underwent numerous examinations by medical staff and refused opportunities for further treatment (see Def Exh A).

Defendant contends that the release of claimant’s medical records to the Attorney General’s Office was properly executed pursuant to New York State Department of Correctional Services (DOCS) regulation, 7 NYCRR § 5.24(b). 7 NYCRR § 5.24(b) as amended, effective Jan. 26, 2005, provides that “[f]or the purpose of providing legal services on behalf of the State, its agencies, officials, employees and persons described in Correction Law, section 24-a, such [inmate medical] records may be released to the Office of the Attorney General, and to outside counsel certified pursuant to Public Officers Law, section 17.”

Claimant argues that defendant’s reliance on 7 NYCRR § 5.24(b) is in error and that the decision in Davidson v State of New York, 3 AD3d 623 [3d Dept 2004], lv denied 2 NY3d 703 (2004), is controlling. Claimant is also seeking an order of summary judgment in his favor. Claimant concedes that he placed his medical records in issue by commencing his Article 78 proceeding but asserts nonetheless that defendant needed to obtain his authorization before releasing his inmate medical records to the Attorney General’s Office. Additionally, claimant contends that some of the released medical records contained medical information which was immaterial and irrelevant to the Article 78 proceeding.

A litigant has been deemed to have waived the physician-patient privilege when in bringing a legal action that person has affirmatively placed his mental or physical condition in issue (Arons v Jutkowitz, 9 NY3d 393, 409 [2007] citing Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). “[A] party should not be permitted to affirmatively assert a medical condition in seeking damages ... while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party’s claim” (id.). Clearly, claimant waived the physician-patient privilege in regard to his relevant medical records by commencing the Article 78 proceeding.

In Davidson, the Court held that the release of an inmate’s medical records without authorization, violated the applicable DOCS regulations, namely 7 NYCRR § 5.24(b). At that time, 7 NYCRR § 5.24(b) required that inmate medical records shall only be released to certain categories of persons or entities if a court has issued a subpoena or there is a court order signed by a judge specifically demanding the production of medical records (see also Davidson v State of New York, 3 AD3d 623 [3d Dept 2004], lv denied 2 NY3d 703 [2004]). However, subsequent to the decision in Davidson, 7 NYCRR § 5.24(b) was amended so as to remove the requirement for a subpoena or other court order prior to the release of an inmate’s medical records to the Office of the Attorney General in its defense of a legal proceeding. 7 NYCRR § 5.24(b) does not require the inmate’s prior approval or authorization before the release of his medical records to the Attorney General’s Office.

Consequently, the release of claimant’s medical records to the Office of the Attorney General was not a violation of the current requirements specified by 7 NYCRR § 5.24(b). Therefore, to the extent claimant is basing his cause of action on the violation of 7 NYCRR § 5.24(b) that portion of his claim must be dismissed.

However, as the court in Davidson v State of New York, 3 AD3d 623 [3d Dept 2004], supra, recognized it is well settled that the release of medical records must be material and relevant to the underlying action.

As the party seeking summary judgment, claimant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853, [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Additionally, a motion to dismiss affirmative defenses must be made on the grounds that the defenses are not stated or that they are without merit (CPLR 3211[b]). The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). It is error for a court to strike a defense if material issues of fact remain unresolved (Matter of Harrison v State of New York, 262 AD2d 833 [3d Dept 1999] and in fact “[i]f there is doubt as to the availability of a defense, it should not be dismissed” (Duboff v Board of Higher Educ. of City of N.Y., 34 AD2d 824 [2d Dept 1970]).

Claimant’s arguments in support of his motion for summary judgment do not eliminate all material issues of fact from the case nor do they demonstrate that defendant’s affirmative defenses cannot be maintained. Defendant argues in reply to claimant’s motion that only the relevant portions of claimant’s medical records were used in the defense of the Article 78 proceeding. Notably, neither party has presented this Court with a copy of those medical records. Thus, the Court is unable to determine at this juncture whether all of the released medical records were material and relevant to the Article 78 proceeding.

Therefore, for the foregoing reasons, claimant’s motion is denied. Defendant’s motion to dismiss is granted, in part, to the extent previously stated.


May 13, 2008
Hauppauge, New York
HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims