Opinion
# 2014-048-138 Claim No. 122255 Motion No. M-84113 Cross-Motion No. CM-84322
04-23-2014
TERRY PERRY v. THE STATE OF NEW YORK
TERRY PERRY, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney
Synopsis
In an action seeking damages for personal injuries sustained as a result of an alleged assault and battery, the Court held both Claimant's motion to compel certain discovery and Defendant's motion for a protective order in abeyance pending an in camera review of the documents sought.
Case information
| UID: | 2014-048-138 |
| Claimant(s): | TERRY PERRY |
| Claimant short name: | PERRY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122255 |
| Motion number(s): | M-84113 |
| Cross-motion number(s): | CM-84322 |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | TERRY PERRY, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq. Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | April 23, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Terry Perry commenced this action seeking damages for personal injuries sustained on October 2, 2012 while he was a patient at the Central New York Psychiatric Center (CNYPC) located in Marcy, New York. Specifically, Claimant alleges assault and battery when, in conjunction with a restraint procedure, an aide employed at the facility punched and kicked him. Claimant has now moved for an order compelling Defendant to produce an investigative report of the incident compiled by Risk Management of the CNYPC. Defendant initially opposed Claimant's motion and also cross-moved seeking a protective order, contending that the report sought is exempt from discovery. Then, by correspondence dated February 21, 2014, Defendant's counsel advised that Defendant would disclose the hospital's investigative report. On February 28, 2014, Defendant filed a one-page Privilege Log (Log) with an attached series of redacted investigative materials consisting of 42 pages, part of which includes a 13-page document entitled "Special Investigation Final Report." The Log specifies five categories of "Attachment[s]," identified as Attachments 16, 17, 19, 20, and 22, together with the nature of the attachments, whether the documents are either redacted and attached or not provided, and the basis for the claimed privilege. By this Log, Defendant has not provided Claimant with 1) Attachment 19, consisting of "14 pages of documents from Patient's chart 10/2/12 - 10/3/12 . . .," 2) Attachment 20, consisting of a two-page letter from a resident received 10/11/12, and 3) Attachment 22, consisting of a two-page accident/injury report for an employee. Defendant asserts that those documents are exempt from disclosure pursuant to the Mental Hygiene Law §§ 33.13 and 33.16, Public Officers Law § 87 (2) (f) (the Freedom of Information Law), Public Officers Law Article 6-A (the Personal Privacy Protection Law) and the Health Insurance Portability in Accountability Act of 1996 (HIPAA) (see Pub. L. 104-191, 110 U.S. Stat. 1936 [1996]; see also 45 CFR parts 160, 164). The Log also indicates that, in addition to the Special Investigation Final Report, Defendant has provided redacted copies of Attachment 16, identified as "Ward Log Report, Ward 305 10/2/12," and Attachment 17, identified as "PCS Daily Shift Act Ward 305 10/2/12." Defendant asserts that certain portions of those documents, however, are privileged pursuant to the Mental Hygiene Law § 33.13 and Public Officers Law § 87 (2) (f).
The Mental Hygiene Law § 33.13 provides, in part, that information maintained by a mental health facility, including clinical records or information tending to identify patients or clients shall be disclosed only upon consent by the patient or by court order. HIPAA and Public Officers Law § 96, respectively and subject to certain exceptions, operate to limit the unauthorized disclosure of personal information (see Matter of Spargo v New York State Commn. on Govt. Integrity, 140 AD2d 26, 31 [3d Dept 1998], lv denied 72 NY2d 809 [1988]), and the unauthorized disclosure of "identifiable patient's health information" (Matter of Miguel M. (Barron), 17 NY3d 37, 42 [2011]; see 45 CFR § 164.508). Public Officers Law § 87 (2) (f) exempts from disclosure information if such disclosure would pose a danger to the life or safety of any person.
Based on this disclosure, by correspondence dated March 5, 2014, the Court requested that the parties advise whether a decision on the pending motions would be required. By document filed March 31, 2014, Claimant asserted that Defendant's disclosure of the redacted report is insufficient as it "fails to account for eight (8) days of targeted monitoring of claimant on Forensic ward 401" and that, in its current form, the report fails to document the formal investigative interviews conducted of Claimant on October 3, 2013 and October 4, 2013 (Claimant's Response to Affirmation, ¶ 3). In response, Defendant's counsel asserts that, in addition to the procedural challenges to the motion previously articulated in its initial opposition papers, the Court should issue a protective order barring disclosure of privileged information as set forth in the Log. Defendant offers to submit the unredacted documents to the Court for in camera review. To the extent that Claimant seeks his own medical records (Attachment 19), Defendant's counsel states that "[i]t has been determined that the medical records may be disclosed to the patient" (Affirmation of Thomas Trace Esq., dated March 24, 2014, ¶ 3).
The Court declines Claimant's request to cite Attorney Trace for improper conduct based on counsel's alleged arrangement for a facility psychiatrist to interview Claimant in February 2014, in part, to determine if he wanted to pursue his Claim (see Claimant's Response to Affirmation, Wherefore Clause; see also Claimant's Correspondence, received February 24, 2014). By correspondence received February 24, 2014, Claimant advised the Court that he was recently interviewed by facility staff on behalf of Attorney Trace, during which Claimant was asked, among other things, why he did not provide a statement to Risk Management following the incident. Defendant's counsel has advised that Office of Mental Health policy requires that a patient's medical records be provided only upon request of the patient and that, unbeknownst to counsel, Claimant was interviewed for this purpose (see Affirmation of Thomas Trace, Esq., dated March 24, 2014, ¶ 3). Counsel also cites to the Mental Hygiene Law § 33.16 (c) (3), entitled "Access to Clinical Records," which provides, among other things, that the treating practitioner may undertake a review to determine whether a patient's access to the records "can reasonably be expected to cause substantial and identifiable harm" (see also Mental Hygiene Law § 33.16 [b] [8]).
Initially, as Defendant has not articulated any prejudice by the filing of Claimant's motion, and has had the opportunity to object to the requested relief, the Court will disregard any technical defects with respect to Claimant's motion (see CPLR 2001). In addressing the merits, the record before the court reveals that, on or about May 31, 2013, Claimant served Defendant with a demand for "all Discovery Material" pertaining to his Claim (Correspondence, dated May 31, 2013, attached to Claimant's Motion No. M-84113; see also Affirmation of Thomas Trace, Esq., dated November 26, 2013, Exhibit A). On or about June 17, 2013, Defendant served its response to Claimant's demand (see Affirmation of Thomas Trace, Esq., dated November 26, 2013, Exhibit B). In that response, Defendant acknowledged that the Attorney General's Office was in possession of a "Confidential, Prepared for Quality Assurance Purposes, Special Investigation Final Report," prepared by Risk Management regarding the incident, but objected to its disclosure, contending that it is exempt from disclosure and privileged pursuant to Education Law § 6527 (3) (see Affirmation of Thomas Trace, Esq., dated November 26, 2013, Exhibit B). As Defendant does not identify Education Law § 6527 (3) as a basis for privilege in the Log and has since disclosed a redacted copy of the investigative report, the Court deems this basis waived.
The New York Education Law exempts from disclosure certain hospital records generated as a result of performing a quality assurance review (see Education Law § 6527 [3]). To assert the privilege, however, Defendant is required "at a minimum, to show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure" (Kivlehan v Waltner, 36 AD3d 597, 599 [2d Dept 2007] [internal quotation marks and citation omitted]; see Mental Hygiene Law § 29.29 [1]; see also Mental Hygiene Law § 29.29 [4], [5]).
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Accordingly, disclosure is required "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). However, information that is privileged or palpably improper, is not subject to disclosure (see DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1318 [3d Dept 2010]). It is Claimant's burden initially, as the party seeking disclosure, "to establish a factual predicate with respect to the relevancy of the evidence"
(McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [4th Dept 2010]). It is Defendant's burden, as the party challenging disclosure, to establish that the information sought is privileged or immune from disclosure (see Marten v Eden Park Health Servs., 250 AD2d 44, 46-47 [3d Dept 1998]). As the trial court has broad discretion in supervising disclosure, if the material sought is relevant and is not otherwise privileged, "it will be the rare case in which CPLR 3103 is applied to deny disclosure altogether" (Willis v Cassia, 255 AD2d 800, 801 [3d Dept 1998] [internal quotation marks and citations omitted]).
While the parties further submissions do not address the applicability of either the Mental Hygiene Law, HIPAA, or the Public Officer's Law, the Court exercises its discretion in controlling discovery by directing Defendant to provide, for in camera review, unredacted copies of the documents identified in the Log, and also to file with the Court and serve on Claimant any affidavits and/or legal memoranda in support of its position. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant. Accordingly, it is hereby
ORDERED that a determination on both Claimant's Motion No. M- 84113 and Defendant's Cross Motion No. CM-84322 is held in abeyance, and Defendant is directed to produce one copy of the records identified as Log Attachments 19, 20, and 22 for in camera review within thirty (30) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. Defendant is also directed to produce two copies of the records identified as Log Attachments 16 and 17, one copy of which shall be marked with proposed redactions that Defendant believes will protect any privileged information, for in camera review within thirty (30) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. Defendant is also directed to file with the Court and serve on Claimant any affidavits and/or legal memoranda in support of its position. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant.
April 23, 2014
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed January 16, 2013;
Answer, filed February 13, 2013;
Notice of Motion, filed October 7, 2013;
"Affidavit" of Terry Perry, dated October 3, 2013, with attached Motion to Compel, dated August 29, 2013, Affidavit of Service, sworn to on October 3, 2013, Correspondence to Thomas Trace, Esq., dated May 31, 2013, Defendant's Response to Notice to Produce, and Exhibit A;
Notice of Cross Motion, filed November 26, 2013;
Affirmation of Thomas Trace, Esq., dated November 26, 2013, with Exhibits A and B;
Claimant's Reply to Cross Motion, dated December 12, 2013, with attached "Affirmation" of Terry Perry, dated December 12, 2013 and Exhibits A-B;
Reply Affirmation of Thomas Trace, Esq., dated December 23, 2013;
Correspondence from Claimant, received February 24, 2014, consisting of three pages;
Correspondence from Thomas Trace, Esq., received February 24, 2014;
Privilege Log, filed February 28, 2014, with attachments consisting of 42 pages;
Correspondence from the Court, dated March 5, 2014;
Reply Affirmation of Thomas Trace, Esq., dated March 24, 2014, with attached Privilege Log;
Claimant's Response to Affirmation, filed March 31, 2014.