New York State Court of Claims

New York State Court of Claims

MAURER v. THE STATE OF NEW YORK, #2009-040-016, Claim No. 112268, Motion No. M-75494


State’s motion: (1) to dismiss for failure to disclose information denied; (2) to preclude for failure to provide medical authorizations denied; and (3) compelling Claimant to provide medical authorizations granted in part and denied in part.

Case Information

JACOB MAURER, an infant, by his mother and natural guardian, LISA MAURER and LISA MAURER, individually
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
FINK & PLATZBy: Steven M. Fink, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Donna R. Silverglad, Esq., AAG
Third-party defendant’s attorney:

Signature date:
January 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, the State’s motion pursuant to CPLR § 3101, 3122, 3124 and § 3126 for an order: (1) dismissing the Claim for Claimants’ failure to disclose information which ought to have been disclosed is denied; (2) precluding Claimants from offering evidence on the issue of liability for failing to provide relevant medical authorizations is denied; and (3) compelling Claimants to produce authorizations permitting Defendant to obtain Ms. Maurer’s medical records from Dr. Jaber, Dr. Behling and Good Samaritan Hospital and reserving Defendant’s right to a further deposition of Ms. Maurer upon receipt and review of the records is granted in part and denied in part.

The Amended Claim, which was filed with the Clerk of the Court on April 28, 2006[1], alleges medical malpractice in the prenatal care and treatment of Claimant, Lisa Maurer, from March 23 through March 26, 2003 while she was a patient at Stony Brook University Hospital. Ms. Maurer thereafter had a follow-up appointment with her treating obstetrician, Dr. Andrew Elimian, on March 28, 2003. On March 29, 2003, Ms. Maurer prematurely delivered her baby, Jacob, at home after approximately 28 weeks of pregnancy. Both Claimants were then taken by ambulance to Good Samaritan Hospital. It is asserted that the alleged malpractice caused Jacob’s significant permanent injuries.

Defendant is seeking the medical records of (1) Dr. Jaber, Ms. Maurer’s family physician, who treated her prenatally and “with whom she discussed the facts leading up to the delivery of [Jacob]” (Affirmation in Support of Donna R. Silverglad [hereinafter, Silverglad Affirmation], ¶ 6); (2) Dr. Behling, Ms. Maurer’s psychiatrist, who treated her prenatally and “with whom she discussed the facts leading up to the delivery of [Jacob]” (id.); and (3) Good Samaritan Hospital, where Ms. Maurer “delivered the placenta for the birth of . . . Jacob” (id.).

Defense counsel avers that a deposition of Ms. Maurer was conducted on December 11 and 12, 2007 (id., ¶ 10); that, following the deposition, a Notice for Discovery and Inspection was served on December 13, 2007 (id., ¶ 11; see Ex. K attached to Motion) and a second Notice was served on December 26, 2007 (id.; see Ex. L attached to Motion); that Claimants responded to the discovery request on March 31, 2008 (see Ex. M attached to Motion); and that counsel rejected the responses as inadequate on April 2, 2008 (Silverglad Affirmation, ¶ 12; see Ex. N attached to Motion).

On April 25, 2008, the Court held a telephone conference with counsel for the parties. Following the conference, the Court issued a Daily Report stating, inter alia, that Claimant would provide Defendant with some of the requested authorizations; that one authorization was at issue and the Court allowed Defendant to move to compel production of those records (see Ex. A attached to Motion). On July 21, 2008, Claimants provided responses with regard to the April 25, 2008 conference and advised they were providing an authorization to obtain Dr. Jaber’s prenatal records for Ms. Maurer (e.g., through March 29, 2003, the day Jacob was born) and would not provide an authorization for the Good Samaritan Hospital records of Ms. Maurer regarding the delivery of the placenta (see Ex. Q to Motion). Ms. Maurer also submitted to Defense counsel a stipulation whereby she seeks to withdraw “any individual claims for pain and suffering, emotional injuries and physical injuries” (id.).

Defense counsel asserts that, pursuant to CPLR § 3101, there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. She further asserts that Claimant Lisa Maurer has placed her medical condition in issue by bringing this Claim (id., ¶ 18).

In opposition to the Motion, Claimants’ counsel asserts that Defendant is seeking privileged medical information pertaining to “the alleged emotional and physical injuries [Ms. Maurer] sustained as a result of the medical malpractice” (Affirmation in Opposition of Steven M. Fink [hereinafter, Fink Affirmation], ¶ 7). Mr. Fink avers that Claimants have “no medical support or evidence; no expert or expert testimony; no medical literature and no desire to pursue a claim for pain and suffering and for emotional and physical injuries on behalf of [Ms. Maurer] and [C]laimants are withdrawing such claims” (Fink Affirmation, ¶ 8). Counsel further states that he has sent a stipulation of discontinuance regarding this portion of the Claim to Defense Counsel and she has refused to sign it (id., ¶ 10).

Claimants’ counsel asserts that Defendant is not entitled to access Ms. Maurer’s postnatal medical records maintained by Dr. Jaber as Ms. Maurer has withdrawn her cause of action for physical and emotional injuries (id., ¶ 13). In addition, he contends that the medical records of Dr. Behling relating to Ms. Maurer are privileged, confidential and irrelevant to this matter (id., ¶¶ 15, 17).

Claimants have submitted affirmations from both Dr. Jaber and Dr. Behling stating that their records relating to Ms. Maurer are irrelevant to the instant matter (see Exs. C & D attached to Fink Affirmation).

First, the Court will address the issue of Ms. Maurer’s discontinuance of her cause of action for pain and suffering and physical and emotional injuries. As pertinent here, CPLR 3217(a)(2) provides that a party may discontinue a cause of action without an order by filing with the Clerk of the Court, before the case has been submitted to the Court, a stipulation in writing signed by the attorneys of record for all parties. This, Ms. Maurer has attempted to do and Defense Counsel has declined to execute the stipulation (Silverglad Affirmation, n 3).

CPLR 3217(b) provides that the only other way a cause of action can be discontinued is by Court order upon terms and conditions the Court deems proper.

The Court finds that Ms. Maurer wishes to withdraw her cause of action for pain and suffering and physical and emotional injuries. Her counsel asserts that Claimants have no medical support or evidence nor expert testimony to establish this cause of action (Fink Affirmation, ¶ 8). Thus, the Court hereby grants Claimants’ request to discontinue this cause of action and it is deemed discontinued with prejudice.

At this juncture, then, the infant’s mother, Ms. Maurer, remains a party to the action in a representative capacity and individually insofar as she asserts a derivative cause of action for loss of services and out-of-pocket expenses. Thus, her physical, emotional and mental conditions no longer are directly in controversy and, accordingly, she has not waived the physician-patient privilege regarding her medical history (Lamy v Pierre, 31 AD3d 613 [2d Dept 2006]; Scipio v Upsell, 1 AD3d 500 [2d Dept 2003]; Scharlack v Richmond Mem. Hosp., 102 AD2d 886, 888 [2d Dept 1984]).

The Court finds, however, that Defendant has established that the medical records of Ms. Maurer pertaining to the time period Jacob “was in utero, during which time there could be no severance of the infant’s prenatal history from the mother’s medical history” are material and necessary to its defense of this Claim and the Court concludes Defendant is entitled to them. (Scharlack v Richmond Mem. Hosp., 102 AD2d 886, supra at 888; see Lamy v Pierre, 31 AD3d 613, supra; Scipio v Upsell, 1 AD3d 500, supra). Claimants assert, and Defendant agrees, that an authorization for Dr. Jaber’s medical records relating to Ms. Maurer up until the date of Jacob’s birth already has been provided (Fink Affirmation, ¶¶ 12-13; Silverglad Affirmation, ¶ 16). Any of Dr. Jaber’s records after Jacob’s birth that pertain to the period when Jacob was in utero also shall be made available to Defendant, and Defendant’s motion to compel production of those records is granted.

The Court now turns to Defendant’s request to compel the production of Dr. Behling’s medical records regarding Ms. Maurer. Ms. Maurer has not placed her psychiatric condition in issue so as to effect a waiver of the physician-patient privilege (Napoli v Crovello, 49 AD3d 699 [2d Dept 2008]). However, as stated above, any medical records pertaining to the time period Jacob was in utero shall be made available to Defendant, and the motion to compel these records is granted.

Finally, the Court will address that portion of the State’s motion which seeks to compel production of the medical records of Good Samaritan Hospital regarding Ms. Maurer’s delivery of the placenta after Jacob’s birth. The redacted affirmation of Defendant’s expert doctor in the field of Obstetrics and Gynecology states with specificity that Ms. Maurer’s delivery records “must be reviewed in order to identify underlying pathology that may have caused and/or contributed to the premature birth and the subsequent injuries claimed herein” (Ex. S attached to Motion papers, ¶ 3[2]). Further, the doctor asserts that the “records would reveal any factors contributing to premature labor” (id., ¶ 4). As the affirmation of Defendant’s medical expert established that Ms. Maurer’s medical records relating to the delivery of the placenta are material and necessary to the defense of this action, the motion to compel is granted (see Lamy v Pierre, 31 AD3d 613, supra at 614).

As set forth above, the State’s motion to compel production of authorizations for the documents is granted in part and denied in part. Claimants are directed to provide authorizations for the documents as set forth above within thirty (30) days of the date of filing of this Decision and Order. After receipt and review of the documents, Defendant may conduct a further deposition of Ms. Maurer. The remainder of the State’s motion is denied. Claimants’ request to discontinue that portion of Ms. Maurer’s claim that asserts a cause of action for pain and suffering and physical and emotional injuries is granted pursuant to CPLR 3217(b).

January 23, 2009
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on the State’s Motion:

Papers Numbered

Notice of Motion, Affirmation in Support,

Exhibits Attached 1

Affirmation in Opposition, Exhibits Attached 2

Reply Affirmation 3

[1].Claimants were granted permission by Judge James J. Lack to serve and file a late claim pursuant to Court of Claims Act § 10(6) (Maurer v State of New York, Ct Cl, Claim No. None, Motion No. M-70741, March 15, 2006 [UID No. 2006-033-177]).
[2].Claimants object to the physician’s name being redacted. However, the Court of Appeals has held that a party may use such an affidavit or affirmation where it is specific (Di Simone v Good Samaritan Hosp., 100 NY2d 632, 634 [2003]).