Opinion
# 2018-053-556 Claim No. 124904 Motion No. M-91716
10-17-2018
CHRIS SPARKS, as Guardian of and on behalf of ROBERT SPARKS v. THE STATE OF NEW YORK
SAFTLER & BACHER, PLLC BY: James W. Bacher, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Edward J. Curtis, Jr., Esq. Assistant Attorney General
Synopsis
Claimant's motion to compel the disclosure of incident reports from a state operated psychiatric center, which was reserved by the Court's interim order pending an in camera inspection, is denied, in part and granted, in part. The Court also directed the Clerk of the Court to seal and preserve the incident and investigation reports in accordance with 22 NYCRR 216.1 (a).
Case information
| UID: | 2018-053-556 |
| 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) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124904 |
| Motion number(s): | M-91716 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | SAFTLER & BACHER, PLLC BY: James W. Bacher, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: Edward J. Curtis, Jr., Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 17, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
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.). Creedmoor is a psychiatric center operated by the New York State Office of Mental Health (OMH). Claimant previously moved by motion no. M-91716 to compel discovery. By Interim Order dated May 31, 2018, this Court granted claimant's discovery motion in part, denied it in part and ordered defendant to produce certain documents for an in camera review.
All references to claimant shall refer to Robert Sparks.
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." --------
With respect to claimant's request for incident reports as contained in his original motion to compel discovery, defendant produced an affidavit by Karime Hernandez, Director of Risk Management at Creedmoor, who established that Creedmoor 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 can be minimized or prevented in the future. She further stated in her affidavit that the incident reports and the investigation report identified were prepared for Creedmoor's risk management department and asserted that they were, thus, privileged under the Education and Public Health Laws.
In its interim decision, this Court ordered defendant to produce these reports for an in camera inspection. After completion of the in camera review of the incident reports, claimant's motion to compel disclosure of these reports is denied as these reports are quality assurance documents prepared in accordance with Education Law § 6527 (3) and Mental Hygiene Law § 29.29 (Marabello v State of New York, 126 AD3d 767 [2d Dept 2015]).
In an interim decision, this Court also ordered defendant to produce for an in camera inspection two copies of the assailant, J.C.'s records from Creedmoor from August 28, 2009 through August 28, 2012, which relate to prior assaults or violent behavior. As ordered, defendant produced one unredacted copy of the assailant's records and a second copy to eliminate those records and/or portions of these records which defendant believed contained privileged or irrelevant material. The Court has reviewed both the unredacted records and the defendant's proposed redactions and concludes that the proposed redactions are appropriate with a few changes made by the Court. Once this final decision is filed, the Court will provide counsel with a copy of the redacted records of the assailant, J.C. These records may only be shared with the parties, counsel and experts retained with respect to this claim only.
The Chief Clerk of the Court of Claims is directed to seal and preserve the incident and investigation reports and both copies of the assailant's records (redacted and unredacted) that were forwarded to the Court for an in camera inspection in the event of possible appellate review. In ordering the sealing of these records, the Court has considered that these records are exempt from disclosure under the Public Health Law and the Education Law and the Health Insurance Portability and Accountability Act (HIPAA). In reaching this decision, the Court has considered the interests of the parties as well as the public and finds that there is good cause to seal these records pursuant to 22 NYCRR 216.1 (a).
Based on the foregoing, that portion of claimant's motion no. M-91716 to compel the disclosure of incident reports which was reserved by the Court's interim order pending an in camera inspection of two incident reports and of an investigation report identified by defendant is denied and that portion of claimant's motion to compel the disclosure of non-medical records regarding assaultive and violent behavior of the alleged assailant is granted to the extent that these records are redacted by the Court.
October 17, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were reviewed by the Court: 1. Two incident reports and an investigation report provided to the Court by the defendant for an in camera review which are to be preserved by the Court under seal; 2. The unredacted copy of the records of the assailant, J.C., provided to the Court by the defendant for an in camera review which are to be preserved by the Court under seal; and 3. The redacted copy of the records of the assailant to be produced to counsel which are to be preserved by the Court under seal.