Opinion
01 Civ. 8386 (LAP)(FM)
June 5, 2002
MEMORANDUM DECISION
I. Introduction
On January 16, 2002, plaintiff Daniel DiGeronimo moved to compel defendants New York Presbyterian Hospital ("Hospital") and Drs. Sylva Hafliger and Peter Schapiro (collectively, the "Hospital Defendants") to release the medical records of pro se defendant Thurman Payne ("Payne"). On January 31, 2002, Payne cross-moved for a protective order staying all discovery in this action until the Appellate Division, First Department, has decided his appeal from a judgment pursuant to which he was convicted of assaulting Daniel DiGeronimo's daughter, Diane DiGeronimo ("DiGeronimo"). For the reasons set forth below, the motion to compel production of Payne's medical records is granted, and the cross-motion for a protective order is denied.
II. Background
This action arises out of an incident on March 12, 1999. At that time, DiGeronimo and Payne were both surgical patients at the Hospital. The complaint contends that Payne entered DiGeronimo's room while she was "completely bedridden" and committed a sexual assault. (Compl. ¶¶ 15, 17). DiGeronimo seeks damages from the Hospital Defendants on the theory that Payne was under psychiatric observation during his stay at the Hospital and would not have been able to commit the assault but for their negligence. (Id. ¶ 69). DiGeronimo further claims that the Hospital negligently failed to repair a defective emergency call button that she tried to use to summon help. (Id. ¶¶ 61-64).
DiGeronimo died in November 2001, apparently as a consequence of medical problems unrelated to the assault. Thereafter, the Court authorized the amendment of the complaint (with the consent of the Hospital Defendants but over Payne's objection) to reflect the substitution of Daniel DiGeronimo, as executor of DiGeronimo's estate, as the plaintiff. (See Docket No. 18). (Diane and Daniel DiGeronimo are hereinafter referred to, collectively, as "DiGeronimo.") Prior to the amendment, with the assistance of a friend who is a paralegal, Payne submitted a pro se answer to the original complaint. In his answer, in addition to denying any involvement in an assault and asserting a series of affirmative defenses, Payne brought both a counterclaim and a cross-claim. The counterclaim alleged that DiGeronimo had falsely accused Payne of the assault. (Payne Answer at 5-6). The cross-claim alleged that if "Payne is found to be liable in any respect to [DiGeronimo, the Hospital Defendants] shall be liable in the same respect and to the same extent to . . . Payne" by virtue of their negligent care and treatment of him. (Id. at 7).
Following the joinder of issue, counsel for DiGeronimo sought Payne's consent for the release of Payne's medical records. (See Decl. of Dennis J. Drasco, Esq., dated Jan. 16, 2002, Ex. C (letter from Mr. Drasco to Payne, dated Jan. 4, 2002) at 2). By letter dated January 10, 2002, Payne refused his consent, noting that he would remain unwilling to comply so long as he was unrepresented by counsel. (See id. Ex. D). On or about January 16, 2002, having failed to secure Payne's voluntary compliance, DiGeronimo filed the present motion to compel. (Docket No. 13). The Hospital filed its opposition papers on or about January 30, 2002, (Docket No. 16), and DiGeronimo filed a reply on or about February 13, 2002 (Docket No. 19). Payne did not respond directly to DiGeronimo's motion, but, rather, filed his cross-motion seeking protective relief on other grounds. (See Docket No. 17).
Drs. Hafliger and Schapiro also did not respond to DiGeronimo's motion.
III. Discussion A. DiGeronimo's Motion to Compel
The privilege issues in this diversity case are governed by New York law. See Application of Am. Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989); Dixon v. 80 Pine Street Corp., 516 F.2d 1278, 1280 (2d Cir. 1975); Don King Prods., Inc. v. Douglas, 131 F.R.D. 421, 423 (S.D.N.Y. 1990) (Sweet, J.) (citing Am. Tobacco, 880 F.2d at 1527).
In New York State, the doctor-patient privilege is recognized by statute. Pursuant to Section 4504(a) of the New York Civil Practice Law and Rules, absent a waiver by the patient, any person who is authorized to practice medicine must protect the confidentiality of "any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity." N.Y. CPLR § 4504(a) (McKinney 1992). This mandate also extends to medical corporations. Id. There are three key elements necessary to establish the existence of the privilege: (1) there must have been a doctor-patient relationship; (2) the information must have been obtained during the course of treatment; and (3) the information must have been necessary for treatment. See Dillenbeck v. Hess, 73 N.Y.2d 278, 289, 539 N.Y.S.2d 707, 714 (1989). In addition, for the privilege to be honored, it must not have been waived. New York v. Gen'l Elec. Co., 201 A.D.2d 802, 607 N.Y.S.2d 181 (3d Dep't 1994).
DiGeronimo concedes that the first three required elements have been satisfied, but claims that the statutory doctor-patient privilege has been waived. A patient may waive that privilege either expressly or by putting his medical condition in issue in the case. See Heidi E. v. Wanda W., 210 A.D.2d 918, 620 N.Y.S.2d 665 (4th Dep't 1994); Hughson v. St. Francis Hosp., 93 A.D.2d 491, 500, 463 N.Y.S.2d 224, 230 (2d Dep't 1983). To waive his privilege impliedly, however, a patient must do more than simply defend an action in which his condition may be in controversy; he must "affirmatively assert the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff." Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 864 (1969). Accord Dillenbeck, 73 N.Y.2d at 287, 539 N.Y.S.2d at 713.
The cross-claim asserted by Payne in his answer to DiGeronimo's original complaint alleged, inter alia, that the care and treatment of him by the Hospital Defendants was negligent and renders them liable to him "in the same respect and to the same extent" that he may be liable to DiGeronimo. (Payne Answer at 7). By advancing this cross-claim, Payne unquestionably has put in issue the psychiatric treatment that he received from the Hospital Defendants and, therefore, also his mental condition. See, e.g., Maurice v. Mahon, 239 A.D.2d 188, 657 N.Y.S.2d 897 (1st Dep't 1997). The Hospital Defendants maintain that if Payne has waived the doctor-patient privilege by putting his mental condition in issue, he obviously "did not know that asserting the cross-claim would constitute a waiver . . . and, accordingly, he should be given the opportunity to withdraw it." (See Affirm. of Gregory J. Radomisli, Esq., dated Jan. 30, 2002, ¶ 8). The difficulty with this argument is that DiGeronimo's motion papers expressly advanced the contention that "Payne placed his medical records into issue by asserting [his] cross-claim" and thereby "waived the doctor-patient privilege." (DiGeronimo Mem. at 6).
Rather than challenging this assertion, Payne opposed DiGeronimo's motion solely by cross-moving to delay any discovery until his pending criminal appeal is resolved. (See Docket No. 17). Thus, even after he was reminded of the existence of the privilege and DiGeronimo's contention that it was impliedly waived by his decision to assert a cross-claim, Payne did not allege that his waiver was unintentional and should be forgiven. Nor did he take any steps to withdraw his cross-claim. I therefore find that Payne's doctor-patient privilege with respect to the Hospital Defendants' medical records concerning his psychiatric treatment has been waived.
On June 3, 2002, the Clerk of the Appellate Division, First Department, confirmed by telephone that Payne filed a notice of appeal and that counsel has been appointed to represent him. No further steps have been taken to perfect his appeal.
B. Payne's Cross-Motion for a Protective Order
Rule 26(c) of the Federal Rules of Civil Procedure allows a court to stay discovery for "good cause." See Fed.R.Civ.P. 26(c); Johnson v. New York Univ. Sch. of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002) (Ellis, Mag J.); Thrower v. Pozzi, No. 99 Civ. 5871, 2002 WL 91612, at *7 (S.D.N.Y. Jan. 24, 2002) (Daniels, J.); Siemens Credit Corp. v. Am. Transit Ins. Co., No. 00 Civ. 0880, 2000 WL 534497, at *1 (S.D.N.Y. May 3, 2000) (Jones, J.). Courts in this District have held that "good cause" includes a pending motion or preliminary matter that might dispose of the entire case. See, e.g., Johnson, 205 F.R.D. at 434; Thrower, 2002 WL 91612, at *7.
Payne seeks to stay discovery in this case on the ground that his appeal as of right is pending before the Appellate Division and could result in the reversal of his conviction. (See Payne Mem. at 4). As noted above, that appeal is unperfected. (See n. 2, supra). Moreover, there is no factual support for Payne's contention that his conviction was unwarranted and should be reversed. In any event, even if Payne had been acquitted of the criminal assault charge at trial, DiGeronimo still would be entitled to pursue the claims in this civil suit, which are subject to a burden of proof considerably less stringent than that which was imposed on the prosecutor in connection with the earlier criminal trial. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984) ("Neither collateral estoppel nor double jeopardy bars a civil remedial forfeiture proceeding initiated following an acquittal on related criminal charges"). Cf. Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir. 1995) (police officer permitted to relitigate justification for arrest despite dismissal of criminal charges against plaintiff for lack of probable cause). There consequently is no reason to await the outcome of Payne's appeal before proceeding with discovery.
C. Effect of Amended Complaint
Following the filing of Payne's answer, the original complaint was amended to reflect Diane DiGeronimo's death and the appointment of her father as her executor. Thereafter, by order dated April 15, 2002, Payne was directed to serve and file his answer to the amended complaint. (See Docket No. 23). Rather than doing so, Payne submitted to the Court a copy of his letter to opposing counsel, which states that "my response to the First Amended Complaint is no response. I cannot afford an attorney and I am untrained in these matters." (See letter from Payne to Lisa A. Firko, Esq., dated Apr. 23, 2002).
Only one week earlier, the Court conducted a telephone conference with Payne and counsel for the other parties. It seems clear that Payne's failure to answer the amended complaint is an outgrowth of his distress that, during that conference call and on several prior occasions, the Court declined his request that counsel be appointed to represent him pursuant to 28 U.S.C. § 1915(e). I nevertheless continue to believe that counsel should not be appointed for Payne, principally because there has been no showing that he has a meritorious defense. See Cooper v. Sargenti, 877 F.2d 170, 174 (2d Cir. 1989) ("Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention."). Also, unlike many other pro se litigants, Payne appears capable of defending himself in this action.
Although he must proceed pro se, Payne is entitled to a considerable degree of deference and should not face the dismissal of his claims or defenses on procedural grounds in the absence of "extreme circumstances." See, e.g., Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). Accordingly, rather than treating Payne's letter as a default, the Court will deem Payne's original answer to be applicable to the amended complaint, thereby preserving both his denials and his counterclaim and cross-claim.
IV. Conclusion
For the foregoing reasons, DiGeronimo's motion to compel the production of Payne's medical records is granted, and Payne's cross-motion for a protective order is denied. The Hospital Defendants are further directed to furnish DiGeronimo's counsel with a copy of the documents responsive to his request within ten business days from the date hereof.
Additionally, the Court will hold a telephone conference in this case on June 24, 2002, at 10 a.m. Counsel for DiGeronimo is directed to initiate the call.
SO ORDERED.