New York State Court of Claims

New York State Court of Claims

PACHECO v. THE STATE OF NEW YORK, #2009-041-011, Claim No. 112094, Motion No. M-76244


Synopsis


Summary judgment is granted dismissing claim which alleged that claimant’s medical records were improperly released by defendant to Office of Professional Medical Conduct (OPMC) because agency had statutory right to disclosure of records based upon claimant’s filing of complaint with agency.

Case Information

UID:
2009-041-011
Claimant(s):
MILTON PACHECO, #79-B-0064
Claimant short name:
PACHECO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112094
Motion number(s):
M-76244
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
MILTON PACHECOPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves for summary judgment dismissing this claim which alleges that defendant improperly released claimant’s medical records to the Office of Professional Medical Conduct of the New York State Department of Health (OPMC). The basis of defendant’s motion is that OPMC had a statutory right to disclosure of the records based upon claimant’s filing of a complaint with OPMC. The claim states that it is for “Unauthorized Disclosure of Medical Records” and “Violations of the Personal Privacy Protection Laws.” The claim alleges that a complaint was made by claimant to OPMC based upon alleged negligent medical care provided to claimant by defendant. Claimant was thereafter advised by OPMC that it had completed an investigation of his complaint and that as part of its investigation had obtained claimant’s medical records. Claimant alleges that his medical records were released without his authorization or a court order.

In support of the motion, defendant offers the affidavit of Douglas P. Mackey, Area Office Director for OPMC, which details the agency’s actions in investigating claimant’s complaint and obtaining claimant’s medical records, and which states that claimant’s records were “kept confidential.” Defendant relies upon Public Health Law § 230 (10) (l), which provides as follows:
“The board or its representatives may examine and obtain records of patients in any investigation or proceeding by the board acting within the scope of its authorization.”
Defendant further points out that 45 CFR 164.512 permits a “covered entity,” such as OPMC, to use “protected health information without the written authorization of the individual,” in a public health investigation.
“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Defendant has satisfied its initial burden by demonstrating that it was authorized to obtain claimant’s medical records based upon claimant’s filing of a complaint alleging improper medical treatment.

“In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion” (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant agrees that OPMC had the right to review his medical records but states that his “main argument” is that he should have been offered the opportunity to sign a release “[u]nder the [c]ommon right of [c]ase [l]aw.” As set forth earlier, 45 CFR 164.512 permits a “covered entity,” such as OPMC, to use “protected health information without the written authorization of the individual,” in a public health investigation.

Claimant also speculates, without offering any proof, that the records released by DOCS “included records that were unrelated to the [m]edical [c]omplaint” to OPMC. Such speculation is insufficient to defeat the defendant’s motion.

For all of the foregoing reasons, the defendant’s motion for summary judgment dismissing the claim is granted. The claim is dismissed.


March 31, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed February 10, 2009;
  2. Affirmation of Belinda A. Wagner, dated February 9, 2009, and annexed exhibits;
  3. Affidavit of Douglas P. Mackey, sworn to February 3, 2009, and annexed exhibits;
  4. Affirmation of Milton Pacheco, dated February 23, 2009;
  5. Affirmation of Milton Pacheco, dated March 18, 2009, and annexed exhibits.