Opinion
080955/2007
6-19-2009
1 CHRISTOPHER REALTY, LLC, Petitioner, v. DOLORES MILLER, Respondent.
Belkin, Burden, Wenig & Goldman, LLP, New York City (Brian Epstein and Jeffrey L. Goldman of counsel), for petitioner. Gay Men's Health Crisis, Inc., New York City (Jeffrey L. Brooks of counsel), for respondent.
In this licensee holdover proceeding, respondent asserts that she has the right to succeed to the rent-stabilized tenancy of Joan Walsh, who died on January 6, 2007. According to respondent, she lived in the premises with Walsh as her partner for more than two years before Walsh died. To defeat respondent's claim of succession, petitioner served subpoenas duces tecum on St. Vincent's Medical Center and the Caring Community social-work organization. Walsh was a patient at St. Vincent's and a client at Caring Community before she died.
Respondent now moves to quash the subpoenas. Petitioner claims that the subpoenas are necessary to obtain records to show that respondent did not have an emotional and financial interdependency with the decedent and thus that she cannot successfully claim nontraditional family-member status to assert succession rights. Respondent claims that disclosing the records will violate the decedent's privacy.
The Court of Appeals defined "family" for succession purposes in Braschi v Stahl Assocs. Co. (74 NY2d 201 [1989]). The Court expanded the meaning of "family" to include relationships characterized by exclusivity and longevity, the way parties conduct their everyday lives and declare their relationship to others, and an emotional and financial commitment. (Id. at 212 [finding that interdependent nature of 10-year relationship fulfilled nontraditional-family criteria].) The Court justified its explanation as realistic of modern family expectations and nuclear arrangements. (Id. at 211.) The Court's definition led it to reverse the Appellate Division's decision, which had limited succession rights to those with traditional, legally recognized familial relationships, such as blood or marriage. After the Court's decision in Braschi, the Legislature amended the Rent Stabilization Code to extend succession rights to nontraditional-family members. (Rent Stabilization Code, [9 NYCRR] § 2520.6 [o] [2].)
Petitioner claims that the subpoenas are relevant to discredit respondent's alleged familial relationship with the decedent. According to petitioner, the subpoenaed records will show that respondent and Walsh were not a loving couple. While disputing that the records will show a lack of a bond between her and Walsh, respondent argues that the decedent's medical and social-work records are confidential. Respondent bases her argument on the physician-patient and the social-worker-client privilege under CPLR 4504 and 4508 and under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Respondent's motion to quash both subpoenas is granted. This court need not rule at this time on the nature of respondent's relationship with the decedent with respect to her asserted right of succession. That issue must be resolved at trial.
I. St. Vincent's Medical Center Subpoena
The St. Vincent's medical records are confidential under both the CPLR and HIPAA. Statutes that permit exceptions to physician-patient confidentiality must be construed narrowly. (People v Sinski, 88 NY2d 487, 492 [1996].) As the Legislature originally contemplated, the physician-patient privilege encourages patients to get medical help without fear that disclosing medical information will breach confidentiality. (Williams v Roosevelt Hosp., 66 NY2d 391, 394 [1985].)
A. Standing
Despite petitioner's argument to the contrary, respondent has standing to move to quash the subpoenas.
Respondent would have standing to move to quash the subpoenas were she the decedent's spouse. A decedent's surviving spouse may assert a spousal privilege over a decedent's medical records under CPLR 4504 (c) (1). On February 14, 2006, the decedent and respondent filled out, signed, and notarized an application to become domestic partners. During the oral argument on respondent's motion to quash, respondent's counsel stated that the decedent's sickness and death prevented the parties from recording the partnership with the Office of the City Clerk. Respondent would have had standing to assert a privilege over the decedent's medical records if she and the decedent had finalized their domestic partnership. Respondent would be a surviving spouse, albeit in the nontraditional sense, who would have standing to assert the physician-patient privilege. (See Prink v Rockefeller Ctr, Inc., 48 NY2d 309, 313 [1979] [finding that decedent's wife had spousal privilege to prohibit disclosure of decedent's psychiatric records].) But respondent and Walsh never finalized their domestic partnership.
Respondent would also have had standing if she proved that she was the decedent's nontraditional spouse. Cohabitants who share an intimate familial relationship characterized by emotional and financial interdependency have standing to assert privileges over a decedent's medical records on a decedent's behalf. (Cf. Ozdemir v Somerset Med. Ctr., 2007 WL 1988731, at *1-2, 4-6, 2007 US Dist LEXIS 48586, at * 3-4, 13-19 [ND NY 2007] [analyzing New Jersey law].) On the papers the parties submitted, which do not raise facts sufficient to hold a hearing, this court cannot decide whether the decedent's relationship with respondent was characterized by an emotional and financial interdependency. That is the issue for trial.
Nevertheless, respondent has standing to assert a privilege over the decedent's medical records because she is a party to this litigation. (See CPLR 4504 [c] [1] [stating that physician must disclose decedent's medical records unless party to litigation objects to disclosure]; In re Grand Jury Investigation of Onondaga Co., 59 NY2d 130, 135 [1983]; Greene v New England Mutual Life Ins., 108 Misc 2d 540, 541 [Sup Ct, NY County 1981]; Vincent C. Alexander, Practice Commentary, McKinney's Con Laws of NY, Book 7B, CPLR C4504:3, at 165 [2007].),
B. Waiver
CPLR 4504 (a) restricts medical professionals from disclosing patients' medical information. Subdivision (c) provides that a physician or nurse must disclose information about a deceased patient's mental and physical condition absent an objection by a party to the litigation or a waiver of the privilege and excepting information that might disgrace the decedent's memory. Only the decedent's personal representative, surviving spouse, or next of kin may waive a decedent's physician-patient medical privilege. (CPLR 4504 [c] [1].) Death alone does not terminate the privilege. (Friedman v Frank, 16 Misc 3d 321, 324 [Sup Ct, Nassau County 2007].)
Petitioner argues under CPLR 4504 that respondent waived any privilege over medical records by discussing the decedent's physical and mental health when she testified at her examination before trial during the disclosure phase of this proceeding. A waiver occurs if the patient or the decedent's personal representative, surviving spouse, or next of kin affirmatively places the privileged information at issue or fails to object to disclosure. (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]; Palma v Harnick, 31 AD3d 406, 407 [2d Dept 2006].) But respondent is not the decedent or the decedent's personal representative, surviving spouse, or next of kin. Moreover, respondent did not place the decedent's physical or mental health at issue. She placed only their relationship at issue. (See Williams, 66 NY2d at 396 [finding that privilege holder's disclosure of facts does not by itself constitute waiver].)
C. HIPAA
An alternative analysis under HIPAA would also quash the subpoena. Federal law preempts CPLR 4504 and other state laws that are less stringent in protecting a patient's privacy rights. (Keshecki v St. Vincent's Med. Ctr., 5 Misc 3d 539, 543 [Sup Ct, Richmond County 2004].) HIPAA privacy rules "set a floor of federal privacy protections whereby state laws that are contrary to the Privacy Rule are preempted unless a specific exception applies." (Arons v Junkowitz, 9 NY3d 393, 414 [2007].) Like the CPLR, HIPAA restricts disclosing medical records. (See 45 CFR 164.502 [a].) Unlike the CPLR, HIPAA lists the following disclosures regarding decedents that require no authorization or opportunity to object: information to coroners, medical examiners, and funeral directors. (See 45 CFR 164.512 [g].) A decedent's medical information is otherwise protected. Petitioner is not a coroner, medical examiner, or funeral director. Petitioner does not assert a statutory exception under HIPAA to obtain the medical records. (See Liew v New York Univ. Med. Ctr., 55 AD3d 406, 567 [2d Dept 2008] [finding that HIPAA prohibits disclosing decedent's medical records absent exception].)
II. Caring Community Subpoena
Respondent's motion to quash the Caring Community subpoena is granted as well. The CPLR protects social-work records in a manner similar to physician records. (Yaron v Yaron, 83 Misc 2d 276, 283-284 [Sup Ct, NY County 1975] [declaring that social worker-client relationship must be protected to encourage client's full disclosure].) Petitioner has not shown that any CPLR exception applies here.
Under CPLR 4508 (a), New York's social-worker-privacy privilege, a licensed master social worker "shall not be required to disclose" privileged information about a client. The social worker who spoke to and worked with the decedent is a licensed master social worker. Subdivision (a) provides that a licensed master social worker shall not disclose a client's privileged record unless the client authorizes the disclosure, reveals the contemplation of a crime or harmful act, is a crime victim less than 16 years old, or waives the information by bringing charges against the social worker. The CPLR 4508 (a) exception does not apply here. The decedent did not authorize disclosure, no criminal activity is in question, the decedent is not a minor, and the decedent did not bring charges against the social worker.
Petitioner correctly observes that the Caring Community's director is willing to disclose the decedent's social-work records. A program director's willingness to release information may not, however, compromise an individual's right to privacy. Confidential communications between social workers and clients must be protected, regardless what a program director is willing to do. (See Yaron, 83 Misc 2d at 283-284 [declaring that privileged information remains privileged unless client waives information].) The director does not hold the privilege.
Because HIPAA serves as a privacy floor and because the CPLR 4508, a state law, provides privacy protections greater than HIPAA (Arons, 9 NY3d at 414), a HIPAA analysis is irrelevant. Nevertheless, social-work records that are "protected health information" are covered under 45 CFR 160.103. (See generally Gratton v United Parcel Service, Inc., 2008 WL 4934056, at *1, 4, 2008 US Dist LEXIS 108700, at *3, 11 [ED NY 2008].) "Protected health information" includes any "individually identifiable health information," in addition to anything that "[r]elates to the past, present, or future mental health condition of an individual." (45 CFR 160.103).
Conclusion
As a party to the litigation, respondent has standing to assert privileges over the decedent's medical records. Petitioner has not given this court a valid reason to compel St. Vincent's Medical Center and the Caring Community to disclose the decedent's medical and social-work records. Petitioner may not obtain the decedent's privileged information; no statutory exception under CPLR or HIPAA exists here. The decedent's privacy may not be violated. The records will remain confidential. Respondent's motion to quash the subpoenas is granted.