Defendant's motion for protective order for medical records of CO documenting his injuries after alleged assault on claimant denied. CO's affidavit did not demonstrate that a professional-patient relationship existed, that the recorded information was obtained for the purposes of treating CO, or that the CO intended and expected that the information would remain confidential. Thus, defendant did not bear its burden of demonstrating the applicability of the claimed privilege.
|Claimant short name:||OHNMACHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DAVID OHNMACHT, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 18, 2009|
|See also (multicaptioned case)|
This claim by an individual incarcerated in a State correctional facility alleges that claimant was assaulted by Correction Officer (CO) Mark Lewis at Coxsackie Correctional Facility on November 3, 2005. This Court previously granted parts of claimant's motion to compel production of documents, but provided defendant the opportunity to seek a protective order with respect to certain documents (see Ohnmacht v State of New York, UID # 2008-038-612, Claim No. 112158, Motion No. M-74753, DeBow, J. [Sept. 24, 2008]). Defendant moved for a protective order, which was granted in part and denied in part (see Ohnmacht v State of New York, UID # 2009-038-538, Claim No. 112158, Motion No. M-75796, DeBow, J. [May 4, 2009]). As part of its decision on the protective order, the Court held in abeyance a decision on claimant's demand for the medical record of the physical examination of CO Lewis following the alleged assault, so that CO Lewis could file and serve papers asserting the physician-patient privilege. Defendant has submitted papers in further support of the motion for a protective order, including an affidavit of CO Lewis. Claimant has submitted opposition to defendant's papers.
The statutory physician-patient privilege(1) is contained in CPLR 4504, which provides in pertinent part:
Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity
(CPLR 4504 [a]). For the physician-patient privilege to apply, "there must have been a professional relationship between the [covered professional] and patient; the information must have been acquired by the [medical professional] while attending the patient in a professional capacity and must have been necessary to enable him or her to treat the patient; and the patient must not have waived the privilege (see, Dillenbeck v Hess, 73 NY2d 278, 289; see also, CPLR 4504 [a])" (State of New York v General Elec. Co., 201 AD2d 802, 802-803 [3d Dept 1994]). Moreover, "it must appear, in light of all the surrounding circumstances, that the communication was intended to be confidential and that the patient must have contemplated that it would remain so (see, People v Decina, 2 NY2d 133, 145; Bernstein v Lore, 59 AD2d 650)" (id. at 803). The party or person asserting the privilege bears the burden of demonstrating "the existence of circumstances justifying its recognition" (Koump v Smith, 25 NY2d 287, 294-295 ; see also People v Decina, 2 NY2d 133, 141 ), which "can be met only by an evidentiary showing based on competent evidence [citations omitted] and cannot be 'discharged by mere conclusory or ipse dixit assertions' " (Fletcher v Atex, Inc., 156 FRD 45, 49 [SDNY 1994]).
The document sought by claimant is entitled "Employee Accident/Injury Report" dated November 3, 2005, the date of the alleged assault, and contains certain "medical findings" regarding CO Lewis recorded in a section of the form entitled "Facility Health Services Report." CO Lewis's affidavit in support of the motion for a protective order summarily states that "the copies of [his] medical records that have been demanded by Claimant Ohnmacht are confidential and privileged under my physician patient privilege pursuant to CPLR 4504 and the provisions of Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191" (Lewis Affidavit, at ¶ 4). However, Lewis's affidavit and defendant's papers in support are devoid of facts that would establish the existence of a medical professional relationship between CO Lewis and the medical professional, nor does the affidavit demonstrate that the information contained in the record was acquired for the purposes of treating Lewis. Thus, Lewis has failed to make the threshold demonstration that the physician-patient privilege applies in this instance. Likewise, Lewis's affidavit contains no facts that would establish that he has any privacy rights under HIPAA, nor does he or defendant make any argument as to how or why the privacy rights under HIPAA apply to the record at issue. Having failed to demonstrate the applicability of CPLR 4504 or HIPAA, CO Lewis's assertion of the physician-patient privilege and the privacy protections of HIPAA is without force.
Moreover, even had CO Lewis established that a professional relationship existed and that the information imparted was necessary for treatment, he does not assert that the information recorded on the document was intended to be confidential and that he intended it to remain so. To the contrary, the Employee Accident/Injury Report does not appear to be a confidential medical record, but rather a document compiled for purposes of recording employee accidents and injuries for administrative purposes. The document was signed by Lewis and his supervisor and indicates at the bottom that its intended distribution is to "Personnel" and to the "Fire/Safety Officer." It appears that Lewis's medical information was intended to be shared with non-medical personnel and thus, there was no expectation of confidentiality, vitiating any claim of privilege (see State of New York v General Elec. Co, supra; Fletcher v Atex, Inc., supra).
Accordingly, it is
ORDERED, that defendant's motion for a protective order with regard to the medical information contained in the Facility Health Services Report section of the Employee Accident/Injury Report dated November 3, 2005 is hereby DENIED, and defendant is directed to produce said document forthwith.
December 18, 2009
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Affirmation of Thomas R. Monjeau, AAG, in Support of Motion for a Protective Order, dated July 1, 2009, with Exhibit A (Affidavit of Mark Lewis, sworn to June 25, 2009);
(2) Affidavit of David Ohnmacht in Opposition, sworn to July 15, 2009.
1. While the privilege in CPLR 4504 applies to communications between a patient and certain specified medical professionals in addition to physicians, the Court will simply refer to the privilege as the "physician-patient privilege".