Claimant's motion to compel a response to his second demand for discovery, information and inspection and/or compel defendant to supplement its responses is denied in part and granted in part.
|Claimant(s):||CHRIS SPARKS, as guardian of and on behalf of ROBERT SPARKS|
|Claimant short name:||SPARKS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LAW OFFICE OF J BACHER, PLLC
BY: James W. Bacher, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Janet L. Polstein, Esq.
|Third-party defendant's attorney:|
|Signature date:||December 23, 2020|
|See also (multicaptioned case)|
Claim no. 124904 arises out of an incident which occurred on August 28, 2012 when the claimant Robert Sparks, a patient at the Creedmoor Psychiatric Center (Creedmoor), was assaulted by another patient (J.C.).(1) Creedmoor is a psychiatric center operated by the New York State Office of Mental Health (OMH). Claimant moves to compel defendant to provide a response to claimant's second demand for discovery, information and inspection dated October 24, 2019 and/or to compel defendant to supplement its response to claimant's second demand for discovery, information and inspection dated October 24, 2019. Defendant opposes the motion. Each of the items of discovery requested will be presented separately.Claimants' Second Demand for Discovery, Information and Inspection Demand for Rules, Regulations and Policies and Procedures
Claimant's first demand in its Second Demand for Discovery, Information and Inspection dated October 24, 2019 demands that the defendant produce: (1) full and complete certified copies policies and procedures relating to the management by defendant of all levels of staff, with respect to incidents of patient/resident violent or aggressive behaviors; (2) policies and procedures relating to nursing checks, bed checks, or other similar checks, that are performed of the patients/residents during every shift; (3) policies and procedures relating to the development of a plan of care, or supervisory response, after an instance of resident aggressions to address resident/patient safety; (4) policies and procedures regarding prevention and/or mitigation of resident to resident aggression; and (5) any and all regulations that apply to an instance of resident to resident aggression. Claimant admits that defendant provided a list and outline of the documents contained in the 738 pages already produced.
In response to this demand, defendant objected to this request as being vague, overly broad and unduly burdensome. Notwithstanding these objections, defendant indicated where online the directives governing the business of state-run mental health facilities could be found and provided a copy of the Office of Mental Health Table of Contents listing the individual Section / Directive and the Section / Directive was issued. In addition, defendant produced a directive entitled "Code Green/ Psychiatric Emergency" at Creedmoor Psychiatric Center and a Nursing Service Policy Manual for Creedmoor Psychiatric Center
In his reply, claimant argues that defendant has failed to produce policies and procedures that specifically relate to "violent or aggressive behavior," "the development of a plan of care," or "nursing checks," among others.
Contrary to claimant's position, defendant should not have to review every rule and regulation to determine if a particular rule or regulation possibly contains a section or sections which claimant might believe is relevant to, for example, "the development of a plan." With that said, claimant is entitled to know if, other than the directives produced, there were any other directives specifically applicable to Creedmoor in August 2012. In addition, some of the general directives listed by defendant on its website are dated after the date of the accident. Claimant should be entitled to know if there was an earlier version of the post-dated incident directives that were in effect in August 2012. Defendant is to supplement its response accordingly.Section II: Demand for Staff & Department List, Hierarchy and Positions
Claimant's second demand requires defendant to produce certified copies of: (1) a chart of the Staff and Departments that existed on the date of the accident, including the hierarchy of what staff or title reports to what staff; (2) the identity, name and title of the person or persons who had responsibility for evaluating patient/resident safety on the date of the incident; (3) the identity, name and title of the person or persons who have responsibility for evaluating patient/ resident safety as of today; (4) the identity, name and title of the person or persons who had responsibility for responding to patient/resident to patient/resident aggressions from the perspective of (1) evaluating the aggressor, and (2) implementing a clinical plan to attempt to avoid reoccurrence; (5) identify the person or persons identified in response to the last request who are no longer employed and provide the identity, name and title of the person or persons who have the responsibility for responding to patient/resident on patient/resident aggressions as of today; (6) the identity, name and title of those who were employed within "Administration" for a period of 6 months prior to and including the date of the incident who were charged with (1) receiving and (2) responding to complaints regarding patient/resident safety; and (7) to the extent that the person or persons identified in response to the last request is no longer employed, provide the identity, name and title of the person or persons who are presently employed within "Administration."
In its response, defendant objected to every section of this demand as being overly broad, vague, unduly burdensome and to the extent that claimant seeks incident reports or investigations, these demands seek documents which are protected from disclosure under HIPAA and Mental Hygiene Law §§ 20.29 and 33.13. Further, defendant stated that it had previously provided claimant with an extensive list of "defendants who rendered care, examined or spoke with the claimant from August 28, 2012 through and inclusive of September 1, 2012" in its supplemental response to claimant's first notice to produce and that the identity of the members of the treatment team had already been disclosed. Defendant also provided claimant with a copy of the organizational chart for Nursing Services at Creedmoor.
Claimant argues in his reply that this demand seeks information about those individuals who had the responsibility for evaluating patient/resident safety in general at Creedmoor and that defendant's previous responses to earlier demands did not provide the information sought by this demand.
A party may only be compelled to produce those items which are in the possession or control of the party served. The items requested must be preexisting and tangible. A party cannot be compelled to create new documents or lists in order to comply with a discovery demand (Durham Med. Search, v Physicians Intl. Search, 122 AD2d 529 [4th Dept 1986]; Forestire v Inter-Stop Inc., 211 AD2d 751 [2d Dept 1995]).
In response to item 1 of claimant's section II demand for a chart, defendant produced a chart identified as the Organizational Chart for Nursing Services at Creedmoor (Produced as Exhibit B; attached as Claimant's Exhibit 9). This chart is not dated. Accordingly, it is not known if this chart existed at the time of the subject assault or the present time. Claimant's demand called for an organizational chart from the time of the subject incident. Defendant is to advise claimant as to the date of this organizational chart and produce any other organizational charts that existed in August 2012.
Items 2 through 7 seek information that would be better answered during a deposition. It is highly unlikely that an organizational chart from August 2012 that would answer these very specific requests would have ever been in existence. Defendant cannot be compelled to create a document that responds to these specific demands. Defendant shall, however, produce any organization charts in its procession from August 2012. If none exist, Defendant is to so advise claimant.Section III: Demand for Incident Reports and Remedial Actions
Claimant's third demand requires defendant to produce: (1) certified copies of any incident reports pertaining to patient/resident to patient/resident aggressions for a period of one year prior to the date of the subject incident and including one year following the date of the incident; (2) certified copies of any documents or reports that detail any remedial action that was taken following each of the patient/resident to patient/resident aggressions previously identified; and (3) a certified list containing the number of incidents of patient/resident aggressions involving " J. C." which occurred prior to the August 29, 2012, subject incident. To the extent that any of the information contained in the incident reports requested in section (1) or in the reports requested in section (2) contain personal, private or privileged materials, this demand requests that both an unredacted copy and a proposed redacted copy be supplied. (Presumably, claimant is requesting that both an unredacted copy and a proposed redacted copy be provided to the Court for an in-camera inspection). Claimant contends that this demand requests incident reports of patients/residents other than the claimant Robert Sparks and/or his assailant "J. C."
Defendant objected to these demands arguing that they are overly broad, demand documents that are not relevant to the issues in the subject claim, request copies of privileged materials under the Education Law § 6527 and Mental Health Law Sections 29.29 and 33.13, and that the issue as to the discovery of the documents requested in sections (1) and (2) of this demand have been decided by this Court's prior discovery decision dated October 17, 2018.
In reply, claimant argues that sections (1) and (2) of this demand request information that is different from its first set of demands as the earlier demands requested information regarding only the claimant Robert Sparks and the assailant, "J.C.", while the present demand requests information about any assault at Creedmoor as well as information regarding what action was taken by Creedmoor after each resident on resident assault. As to claimant's section 3 request for a certified list containing the number of incidents of aggression of patient/claimant "J.C.," claimant argues that this demand requires numbers and dates for prior incidents by "J.C." which is relevant to the issue of notice but also to clarify whether "J.C."is also "C.J." which is believed to be the case based on the testimony of non-party witness, Valsa Paul, who referred to both "J.C." and "C.J."
Section 3101 of the CPLR states that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. It does not require a review by the defendant and then by the Court of the records of potentially thousands of patients at Creedmoor during a two year period to determine if any patient throughout this two year period was involved in a patient/resident on patient/resident assault and to determine what remedial action was taken after each incident as requested by claimant in sections (1) and (2) of this demand. In addition, claimant makes no attempt to even argue that the records of potentially thousands of residents of Creedmoor both before and after the alleged incident could possibly be relevant and necessary to any issue in the present claim. Claimant is fishing, for what is unclear.
Moreover, this Court denied claimant's previous motion to compel the production of the incident reports of the assailant "J.C." as these incident reports were quality assurance documents prepared in accordance with Education Law §6527 (3) and Mental Hygiene Law § 29.29. With respect to claimant's earlier motion to compel, defendant produced an affidavit by Karime Hernandez, Director of Risk Management, at Creedmoor, who established that Creedmore had in place a risk management department, a quality assurance plan and an incident management and reporting system to promote safety and welfare, to identify systemic problems and to determine if such problems could be prevented in the future (see Interim Order, Sparks v The State of New York, Motion No. M-91716 [Ct Cl, Sampson, J., May 31, 2018]). Claimant makes no attempt to show how the incident reports potentially involving thousands of random residents would somehow be material and necessary and suddenly discoverable when the incident reports of the assailant were privileged and not discoverable.
Section (3) of this demand requests a certified copy of a list containing the number of incidents involving the assailant "J.C." during the time he was a resident at Creedmoor up to the date of the subject incident, August 29, 2012. Contrary to claimant's characterization of the prior discovery demands, this Court conducted an in camera review of the records of the assailant "J.C." from August 28, 2009 through August 28, 2012 and turned over documents which related to or mentioned prior assaults or violent behavior of the assailant. The documents turned over were not limited to prior assaults or violent behavior on the claimant Robert Sparks only. (see Sparks v The State of New York, UID No. 2018-053-556 [Ct Cl, Sampson, J., October 17, 2018]). If claimant wants to know the number of incidents involving "J.C." he can count the number from that portion of the records of "J.C." previously produced. Defendant cannot be compelled to create a document which does not exist.
Finally, claimant argues that a list of assaults is necessary in order to clarify whether "J.C." is also "C.J." While perhaps the non-party witness identified in claimant's motion could not recall if the assailant's name was "J.C." or "C.J." when she was deposed eight years after the subject incident, the parties have no such confusion. In the claim, the assailant is identified as "J.C." who allegedly assaulted the claimant on August 28, 2012 and who was prosecuted in the Criminal Court of the City of New York for the alleged assault. Moreover, there is a reference in that portion of the records of "J.C." previously turned over to claimant, which specifically references an incident of August 28, 2012, the date of the subject incident.
Defendant will, however, advise claimant if in August 2012, there was another patient/resident at Creedmoor with the same two names as the assailant "J.C." only in the reverse order, i.e., "C.J.". Otherwise, no further response to claimant's demand for incident reports and remedial action is required.
Finally, throughout claimant's motion, there are requests that defendant be compelled to admit liability and/or requests other sanctions. The mere fact that claimant is unhappy with defendant's responses does not justify the imposition of sanctions. Here, in the absence of any evidence that the purported failure of the defendant to produce certain documents that claimant thinks are relevant, material and discoverable was willful or contumacious, this Court will not impose any sanctions on the defendant (Forestire, supra at 756).
Based on the foregoing, claimant's motion no. M-95546 is denied in part and granted in part. Within 30 days of the filing of this decision, defendant shall serve a supplement response to claimant's second demand for discovery, information and inspection in accordance with this decision.
December 23, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and supporting affirmation of James W. Bacher, Esq. dated May 4, 2020, with annexed Exhibits 1-9;
2. Opposing affirmation of Assistant Attorney General Janet L. Polstein dated June 16, 2020; and
3. Reply affirmation of James W. Bacher, Esq. dated June 22, 2020.
1. To protect his privacy rights pursuant to Mental Health Law § 33.13, this decision will refer to the alleged assailant as either the "assailant" or by his initials "J.C."