New York State Court of Claims

New York State Court of Claims
BASTIAN v. THE STATE OF NEW YORK, # 2009-044-565, Claim No. 104744, Motion No. M-76715


Court denied inmate claimant's motion in medical malpractice action to preclude defendant from use at trial of any of his medical records obtained by AG without HIPAA authorization; even though defendant did not comply with HIPAA requirements, it would be entitled to discovery of the documents, as claimant put his medical condition in question through claim of malpractice.

Case information

UID: 2009-044-565
Claimant short name: BASTIAN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 104744
Motion number(s): M-76715
Cross-motion number(s):
Claimant's attorney: GEORGE F. BASTIAN, III, pro se
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 4, 2009
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed a claim on August 17, 2001 commencing this medical malpractice action, in which he alleges that he did not receive adequate or appropriate medical care while he was in the custody of the Department of Correctional Services (DOCS).(1) Defendant State of New York (defendant) answered and asserted various affirmative defenses. Claimant was subsequently granted permission to file an amended claim to include (among other things) malpractice based upon a diagnosis of diabetic retinopathy and a misdiagnosis of claimant's carpal tunnel syndrome (Bastian v State of New York, 8 AD3d 764 [2004]). Defendant filed and served an answer to the amended claim. Defendant's subsequent motion for summary judgment dismissing this action (Bastian v State of New York, Ct Cl, July 5, 2007, Schaewe, J., Claim No. 104744, Motion No. M-72910 [UID # 2007-044-540]) and claimant's motion to settle the claim (Bastian v State of New York, Ct Cl, Mar. 11, 2008, Schaewe, J., Claim No. 104744, Motion No. M-74506 [UID # 2008-044-524]) were both denied.(2)

Claimant now moves to preclude defendant from use at trial of any of his medical records which were obtained by the Office of the Attorney General (OAG) without claimant's authorization given pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).(3) It is undisputed that claimant did not sign an authorization for release of his records in this case. He advises that he became aware that his records had been released to the OAG when he found a letter from an OAG investigator in his medical file while reviewing those records for trial. The letter, dated September 30, 2008, requested that DOCS forward to OAG a complete, certified copy of all of claimant's medical records "from 1995 to the present as soon as possible for trial."(4) DOCS seemingly complied with the request, as a certified mail receipt and return postcard were apparently also in the file. Claimant accordingly requests preclusion of these documents, "except for what [he has] already supplied."(5)

Defendant opposes the motion, arguing that because claimant commenced this medical malpractice action, he put his medical condition in issue. Moreover, defendant contends, OAG was authorized to request and obtain claimant's medical records pursuant to 7 NYCRR 5.24 (b). That regulation provides in pertinent part: "[f]or the purpose of providing legal services on behalf of the State. . . [inmate medical records] may be released to the Office of the Attorney General." However, it should be noted that this regulation also states: "[i]nmate medical records shall be released in accordance with . . . the HIPAA privacy regulations, and State law" (7 NYCRR 5.24 [a]; see also 7 NYCRR 5.1).(6)

The HIPAA Privacy Rule (45 CFR parts 160, 164) provides for the use or disclosure of an individual's protected health information without an authorization when the "use or disclosure is required by law and . . . complies with and is limited to the relevant requirements of such law" (45 CFR 164.512 [a] [1]). However, even though use or disclosure of the information is required by law, a covered entity(7) must nevertheless meet the requirements of 45 CFR 164.512 (c), (e), or (f) (45 CFR 164.512 [a] [2]; see Matter of M.M., 18 Misc 3d 696 [2007], affd Matter of Miguel M., 66 AD3d 51[2009]; United States v Zamora, 408 F Supp 2d 295 [2006]).

The applicable provision in this instance is 45 CFR 164.512 (e), which addresses disclosure for judicial proceedings. Under that provision, a covered entity may disclose information during the course of a judicial proceeding without a court order in response to a discovery request (or other lawful process), if said entity receives satisfactory assurance from the requesting party that reasonable efforts have been made to ensure that the subject of such information has been given notice of the request (45 CFR 164.512 [e] [1] [ii] [A]). The entity may disclose the information without receiving such reasonable assurance, however, if the entity itself has made reasonable efforts to provide notice to the individual (45 CFR 164.512 [e] [1] [vi]). "While this litigation exception may appear to be tailored for those situations in which the protected health information is not being sought from a party to the proceedings, [the United States Department of Health and Human Services] has declared that '[t]he provisions in [this section] are not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her protected health information' " (Arons v Jutkowitz, 9 NY3d 393, 414 [2007] quoting 65 Fed Reg 82462, 82530 [2000]).(8)

Defendant does not assert that either OAG or DOCS made reasonable efforts to provide notice to claimant of the disclosure of his complete medical record to OAG, as would be necessary to comply with the requirements of 45 CFR 164.512 (e). On the other hand, claimant has clearly put his medical condition in issue, and has waived the physician-patient privilege of CPLR 4504, by commencing this medical malpractice action (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287 [1989]).

It is also well settled, however, that this waiver pertains only to those records that are material and relevant to the alleged malpractice (Davidson v State of New York, 3 AD3d 623, 624 [2004], lv denied 2 NY3d 703 [2004], lv dismissed 5 NY3d 872 [2005]). In this instance, it is unclear whether all of the records released (which, presumably, was the entirety of claimant's medical file) are material and relevant to claimant's action, as the Court has not been provided with copies of the records in issue.(9) Nonetheless, as noted in another Court of Claims decision, "[i]t is possible to think of many physical or mental conditions that a person would prefer to keep private, and they have a right to do so" (Davidson v State of New York, Ct Cl, Jan. 13, 2003, Hard, J., Claim No. 106233, Motion No. M-65529 [2003], at 8, affd 3 AD3d 623, 624 [2004], lv denied 2 NY3d 703 [2004], lv dismissed 5 NY3d 872 [2005]). In any event, claimant has not made any showing that all (or even part) of the records for which he seeks preclusion are immaterial or irrelevant to his claim.

In the end, it is apparent that defendant would be entitled to discovery of all of claimant's medical records (to the extent that they are material and relevant to the claim) even though defendant did not comply with HIPAA requirements.(10) Moreover, the Court notes that no private right of action is available under HIPAA (see e.g. Webb v Smart Document Solutions, LLC, 499 F3d 1078, 1081 [9th Cir 2007]; Acara v Banks, 470 F3d 569, 571 [5th Cir 2006]; see also Holzle v Healthcare Servs. Group, Inc., 7 Misc 3d 1027[A], 2005 NY Slip Op 50770[U] [ 2005]), and 7 NYCRR 5.24 (d) additionally provides that "[n]othing in [that] section shall be construed as creating a private right of action for an individual who is the subject of these records."(11) Nevertheless, both OAG and DOCS would be well advised to comply with HIPAA in the future. Claimant's motion to preclude those medical records not provided to OAG by him is denied.

November 4, 2009

Binghamton, New York


Judge of the Court of Claims

The following papers were read on claimant's motion:

1) Correspondence from claimant to the Court dated September 21, 2008.

2) Motion filed on May 21, 2009, and attachments.

3) Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, dated June 3, 2009.

Filed papers: Claim filed on August 17, 2001; Verified Answer filed on September 12, 2001; Amended Claim filed on August 23, 2006; Verified Answer To Amended Claim filed on August 28, 2006.

1. Sometime after commencing this action, claimant was released from DOCS custody, and was thereafter incarcerated at the Livingston County Jail located in Geneseo, New York. Claimant is once again in the custody of DOCS.

2. Because claimant is currently in DOCS custody, the Court granted his subsequent motion to the extent that a prisoner pro se trial would be scheduled in the near future (Bastian v State of New York, Ct Cl, Sept. 18, 2008, Schaewe, J., Claim No. 104744, Motion No. M-75140). Claimant is once again reminded that as an inmate proceeding pro se, he is not a person authorized to issue subpoenas and must formally move for a court order allowing the issuance of a subpoena (CPLR 2302). In said motion for a subpoena, claimant should identify his proposed witnesses and set forth the substance of their purported testimony to satisfy the burden of establishing that testimony from each witness is material and necessary (see Moley v State of New York, Ct Cl, May 25, 2006, Moriarty III, J., Claim No. 105084, Motion No. M-71335 [UID # 2006-037-011]; Smith v State of New York, Ct Cl, June 24, 2005, Lebous, J., Claim No. 101701-A, Motion Nos. M-70205, M-70206 [UID # 2005-019-544]).

3. 42 USC 1320d et seq., as added by Pub L 104-191, 110 US Stat 2021.

4. Claimant's Motion filed May 21, 2009, at 3.

5. Affidavit in Support of Claimant's Motion, 4.

6. Accordingly, there does not appear to be any legitimate argument that the DOCS regulation is preempted by HIPAA (see 45 CFR 160.202).

7. A covered entity includes (among other organizations) health care providers (see e.g. Arons v Jutkowitz, 9 NY3d 393, 412-413 [2007]) such as DOCS medical providers.

8. Cf. Matter of M.M., 18 Misc 3d 696 [2007], supra (the individual whose medical records were sought was the subject of a proceeding to determine whether Assisted Outpatient Treatment pursuant to Mental Hygiene Law 9.60 [Kendra's Law] should be authorized, rather than having voluntarily put his medical condition in issue. Accordingly, he was not compelled to execute an authorization; rather, disclosure was authorized under the public health intervention exception of HIPAA [45 CFR 164.512 (b) (1) (i)]).

9. Claimant's letter to the Court dated September 21, 2008 is somewhat instructive. Claimant therein requests that his medical record from January 2001 through May 2004 be subpoenaed for trial, and further requests the availability of records from 1995 when he was incarcerated at Gouverneur and Mt. McGregor Correctional Facilities. Presumably claimant believes that all these records are relevant to his claim.

10. If any such records are found to be not relevant at some point in these proceedings, the Court will order those records returned to DOCS.

11. While the regulation purports to prohibit a new, "stand-alone" cause of action in the event that an inmate's medical records are improperly released by DOCS (7 NYCRR 5.24 [d]), obviously it does not - and cannot - negate the inmate's right to the privilege of confidentiality with his medical professional pursuant to CPLR 4504, and the concomitant cause(s) of action for breach thereof (Doe v Community Health Plan-Kaiser Corp., 268 AD2d 183 [2000]), as only the Legislature has that power (see generally Montgomery v Daniels, 38 NY2d 41 [1975]).