Opinion
109431.
Decided September 22, 2006.
Wayne Brabham, Pro Se, for Claimant.
Hon. Eliot Spitzer, New York State Attorney General, By: Kevan J. Acton, Assistant Attorney General, for The State of New York.
Synopsis: Claimant moves to compel defendant to produce claimant's medical records without charge. The motion is denied since Public Health Law § 18 governs claimant's request for medical records and permits defendant to charge a reasonable fee for inspection and copying of such records.
Claimant moves to compel defendant to respond to certain discovery demands and further moves for "additional poor person's relief pursuant to Judiciary Law § 2-b and CPLR 1101." Specifically, claimant seeks an "an exemption from paying the costs and fees involved in reviewing, identifying and photocopying the documents sought in my Demand for Discovery."
The claim alleges negligence and malpractice by the defendant over a period of years in its medical treatment of claimant during his incarceration at various correctional facilities operated by defendant.
Both motions involve claimant's attempts to obtain copies of his medical records from defendant. Defendant asserts that it is willing to provide copies of its records for a fee of 50 cents per page, or, alternatively, claimant would be permitted to review and transcribe his records by hand at a charge of $13.00 per hour. Claimant states that he cannot afford either alternative.
Additionally, the motion to compel seeks production of certain non-medical records.
Claimant's motion for poor person relief is denied.
Initially, defendant argues that claimant's application cannot be considered a request for "additional" poor person relief since claimant was not granted poor person status by a June 9, 2004 order relied upon by claimant. According to the parties, that order was made pursuant to CPLR § 1101(f) and simply reduced the Court of Claims filing fee from $50.00 to $25.00.
If claimant's motion is considered an original application for poor person relief, it must be denied since the "application is defective inasmuch as the action has been commenced and no notice was given to the county attorney of the appropriate county as mandated" ( Sebastiano v. State of New York, 92 AD2d 966 [3rd Dept 1983]; CPLR § 1101[c]). Notice of a poor person application is required to be given to the appropriate county attorney since there are "no available statutory provisions which would support [a] Court of Claims assessment of any [poor person] expenses against the State" ( Mapp v. State of New York, 69 AD2d 911, 912 [3rd Dept 1979]).
Even were claimant granted poor person status, it is unlikely that he would be entitled to the relief requested. Controlling case law ( Gittens v. State of New York, 175 AD2d 530-531 [3rd Dept 1991]) instructs that:
"There is no general provision which requires the State to pay the litigation expenses in claims brought against it. Court of Claims Act § 27 specifically provides that, except in instances not here present, "costs, witnesses' fees and disbursements shall not be taxed . . . by the court to any party". Moreover, claimant is an inmate in a State correctional facility subject to a sentence of imprisonment. Civil Rights Law § 79 (3) and § 79-a (3) specifically provide that the State shall not be liable for any expense of, or related to, inmate litigation and shall not be required to perform any services related thereto, particularly where, as here, poor person status has not been granted."
These principles were reiterated in Matter of Brown v. State of New York ( 6 AD3d 756 [3rd Dept 2004]) which held that prison officials were under no obligation to provide "information and recording equipment for use in conducting depositions of nonparties in a civil action pending in federal court." The court denied the prisoner's request even though the prisoner had been designated a poor person in the federal court action and had obtained an order from the federal court permitting him to conduct telephonic depositions. The court found that the prisoner had not tendered payment for the requested recording equipment and that the prisoner did not "offer any basis for his claim that [the federal] court order obligated state prison officials to assist him by providing the requested equipment, particularly since the state generally is not required to perform any services related to prison inmate litigation" ( Brown, 6 AD3d at 757).
The case primarily relied upon by claimant, Carter v. County of Erie ( 255 AD2d 984 [4th Dept 1998]), does not support the relief requested by claimant. In Carter, the court held that while a person granted poor person status "is entitled to those benefits conferred by CPLR 1102, including copies of transcripts of hearings and trials at government expense. . . . The [lower] court properly rejected the contention of plaintiff that Erie County must bear the cost of deposition transcripts provided to her and must pay her expert witness fees and similar extraordinary expenses" ( Carter, 255 AD2d at 985). Inspection and copying of medical records without charge is not a benefit expressly conferred by CPLR § 1102.
On the other hand, the Court recognizes that the Appellate Division, Third Department has recently stated that "DOCS' policy imposing the inspection and copy fees makes clear that an inmate has a right of access to view and/or obtain a copy of his or her health record and that access shall not be denied solely because of the inability to pay" ( Matter of Pratt v. Goord, 20 AD3d 827-828 [3rd Dept 2005]).
The Pratt decision, however, further points out that "the provisions of Public Health Law § 18 govern any effort by petitioner to inspect or copy his medical records. . . . Public Health Law § 18(2)(e) expressly states that a provider may impose a reasonable charge for all inspections and copies, not exceeding the actual costs incurred" ( Pratt, 20 AD3d at 828).
Finally, the Court notes that in Matter of Dawes v. Selsky ( 286 AD2d 806 [3rd Dept 2001]), there is reference to a Department of Correctional Services practice by which an indigent inmate may "sign a form which would encumber his inmate account for the cost of the copies of his records, a condition which is not inconsistent with Public Health Law § 18(2)(e)" ( Dawes, 286 AD2d at 807).
The claimant's motion to compel discovery pursuant to CPLR Rule 3124 is denied in part and granted in part. The motion to compel production of the medical records is denied since "[d]efendant informed claimant that it would provide those materials upon claimant's payment of the necessary copying charges, and claimant never provided such payment" ( Shell v. State of New York, 307 AD2d 761, 762 [4th Dept 2003], lv denied 1 NY3d 505).
With respect to the non-medical disclosure the defendant has shown, with one exception, that it has provided the requested documents excluding those destroyed "pursuant to routine destruction policy." The exception is claimant's demand 37 which seeks disclosure of any transfer orders regarding claimant made by the Department of Correctional Services, including but not limited to the reason for the transfer, the person who recommended the transfer, the person who approved the transfer and the existence of any medical holds "that were or may have been rescinded."
The demand was served on defendant on October 17, 2005. On October 28, 2005, defendant provided a response to demand 37 (and four other demands) by stating it would "respond to these demands subsequently."
In response to claimant's motion to compel a response to demand 37, defendant attaches a print-out of claimant's transfers and "reserves the right to object to the time scope of this demand and the relevance of ancillary information sought in the demand if the computer print-out does not satisfy claimant."
Defendant's right to object "[w]ithin twenty days of service" of the demand "with reasonable particularity" (CPLR Rule 3122[a]) has been waived since there is no claim that "the material requested is privileged under CPLR 3101 or otherwise palpably improper" ( Greico v. Albany Ambulette Service, Inc., 232 AD2d 938, 939 [3rd Dept 1996]; see Briand Parenteau Inc. v. Dean Witter Reynolds Inc., 267 AD2d 576, 577 [3rd Dept 1999]). Further, defendant has not cross-moved for a protective order with respect to the demand ( Johanson Resources, Inc. v. La Vallee, 298 AD2d 659 [3rd Dept 2002]).
Indeed, defendant has not, in fact, actually objected to the demand either initially or in response to the motion to compel. Defendant, in its opposition to the motion, merely "reserves the right to object."
Defendant is therefore directed to provide claimant a response to demand 37 within 40 days from the filing of this decision and order.