Claimant's Motion to compel records for in camera review granted in part.
|Claimant(s):||PAUL M. GREAVES and JENNIFER GREAVES|
|Claimant short name:||GREAVES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||TABNER, RYAN & KENIRY, LLP
By: Brian M. Quinn, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Joan Matalavage, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 18, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Claimants' Motion for an order compelling Defendant to provide the contents of the psychiatric records in its possession of Claimants' alleged assailant to the Court for its in camera review is granted in part.
The Claim, which was filed in the office of the Clerk of the Court on November 10, 2016, alleges that Claimant(1) was working as a Residential Counselor for Rehabilitative Support Services in a Supportive Housing Residence in Cohoes, New York, when, on November 6, 2015 at approximately 4:30 p.m., Claimant was assaulted in the kitchen of the residence by a named "consumer" who repeatedly stabbed Claimant in the head (Claim, ¶6). The Claim further alleges that the Capital District Psychiatric Center and Dr. DePoo were negligent in their care and treatment of the alleged assailant (id., ¶ 4). More specifically, the Claim asserts that Defendant was negligent in its failure to supervise, maintain, and provide adequate care and treatment, including failures to provide, monitor, assess, and control, among other things, therapeutic and necessary psychotropic medication, among other care treatments and therapies, to the alleged assailant (id., ¶ 7).
The Claim further asserts that Defendant owed a duty to Claimant to use reasonable care to keep him safe, free of dangers, and to keep and maintain the alleged assailant from behaving in such a manner, and from becoming a danger. It is alleged Defendant breached this duty by failing to supervise, control, care for, maintain, and provide appropriate medical, health, and other care, including psychiatric treatment, further including prescribing and dispensing appropriate medication, among other therapies and controls, including general care and treatment to the alleged assailant, in order to control his known mental health disorders and conditions. It is further alleged that Dr. DePoo altered, changed, modified, and reduced the alleged assailant's care and treatment, including psychotropic anti-psychotic medication, among other things (Claim, ¶ 8).
The Claim also asserts that Defendant failed to act and reevaluate the alleged assailant after knowing his signs and symptoms, and after receiving numerous reports made by Residential Counselors who worked with him, indicating that his behavior was becoming increasingly erratic and unpredictable, among other things, and that he was posing a risk to himself and others as a result of the negligent and improper care rendered to him (Claim, ¶ 9). It is further asserted that, at the time of the incident, the alleged assailant was using illegal drugs and prescription medications, that Defendant had knowledge of this fact, and did not take appropriate action to reduce the risk of harm to the Claimant (id., ¶ 14).
Generally, the scope of discovery is broad and CPLR 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." It is to be liberally construed, subject to a showing of materiality and necessity, and in the absence of a privilege that militates against disclosure (Hoenig v Westphal, 52 NY2d 605, 608 ; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ; McKinney v State of New York, 111 Misc 2d 382, 384 [Ct Cl 1981]).
Claimants assert they are entitled to information of a non-medical nature relating to similar violent behavior or any prior assaults by the alleged assailant (J.Z. v South Oaks Hosp., 67 AD3d 645 [2d Dept 2009]) (Affirmation of Brian M. Quinn, Esq. [hereinafter, "Quinn Affirmation"], ¶ 14).
Claimants' counsel further states:
16. In addition, a claimant may also be entitled to medical information contained in the patient's clinical record upon a showing that the privilege had been waived (see CPLR 4504 [a]), or that the interests of justice significantly outweigh the need for and the right of the patient's confidentiality (see [J.]Z. V South Oaks Hosp., 67 AD3d at 645-646).
17. Therefore, to the extent an in-camera review reveals any waiver or evidences that the interests of justice significantly outweigh the need for and the right of the patient's confidentiality, Claimants request copies of any such records as well.
18. Claimants further request that the Court, after the in-camera inspection, divulge any other records it deems appropriate.
(Quinn Affirmation, ¶¶ 16, 17, 18)
Mental Hygiene Law § 33.13(c) provides that, with certain exceptions, clinical records related to psychiatric treatment maintained by the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities which might tend to identify patients or clients "shall not be released by the offices or its facilities to any person or agency outside of the offices." The two relevant exceptions here are the following:
(1) pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality * * *
(7) with the consent of the patient or client or of someone authorized to act on the patient's or client's behalf, to persons and entities who have a demonstrable need for such information and who have obtained such consent, provided that disclosure will not reasonably be expected to be detrimental to the patient, client or another * * *.
The statute also provides, in subdivision (f), that any such disclosure under subdivision (c) "shall be limited to that information necessary and required in light of the reason for disclosure" and that the information disclosed "shall be kept confidential by the party receiving such information."
In Brier v State of New York (95 AD2d 788 [2d Dept 1983], the court set forth guidelines for examining hospital records:
In the process of redacting the hospital record the court shall exclude therefrom (1) all reports and references concerning physical and psychological examinations, the results thereof, prognosis, diagnosis and treatment, (2) any entry where a doctor, nurse or other medical personnel refers to a prior assault or act of violence between the patient and another as a starting point for that entry, or such entry that is made as the basis for their interviewing and/or treating the patient and (3) any entry by medical personnel concerning treatment of the patient for the specific incident which was the basis of his referral to them. The court shall include in the redacted copy of the hospital record to be furnished to the claimants (1) all reports and references made, regardless of author, concerning any assaultive or violent behavior between the patient and another, including the time and place and surrounding circumstances, the date the information came within the knowledge of defendant, and any subsequent action, such as a transfer within the institution taken by the institution personnel, the police department, the courts, etc., where such action was predicated upon the aforesaid behavior, and (2) the number of times the patient was confined to defendant's institution and the length of each stay thereat.
Based upon the information provided, the Court finds and concludes that information concerning medical diagnosis and treatment is privileged, and no evidence has been submitted to establish that the alleged assailant has waived the privilege. In addition, the Court finds and concludes that Claimants have not established that the interests of justice significantly outweigh the need for confidentiality (Bellamy v State of New York, 136 AD3d 1247, 1247-1248 [3d Dept 2016]; Exelbert v State of New York, 140 AD2d 665, 665 [2d Dept 1988]).
The Court finds that Claimant has established a sufficient basis to justify a review, in camera, of the alleged assailant's psychiatric records, not relating to medical diagnosis and treatment, which the Court concludes is privileged, to determine if they contain information of a non-medical nature concerning any prior assaults or violent behavior by the alleged assailant, and it is
ORDERED that Defendant is to provide the Court, for purposes of an in-camera inspection, two copies of the alleged assailant's psychiatric records in Defendant's possession within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. One copy shall be unredacted and the other shall be marked with proposed redactions that Defendant believes will protect confidential information. Defendant is directed to sequentially number the pages of the records submitted. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimants.
September 18, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimants' Motion:
Notice of Motion, Affirmation in Support 1
Affidavit in Opposition and Exhibits Attached 2
Filed Papers: Claim, Answer
1. Unless otherwise indicated, all references to Claimant are to Paul M. Greaves, as the cause of action of Jennifer Greaves is derivative in nature.