Opinion
# 2020-053-546 Claim No. 130252 Motion No. M-95822
12-09-2020
HOLLIE BOJARSKI v. STATE OF NEW YORK, WESTERN NEW YORK DEVELOPMENTAL DISABILITY SERVICES OFFICE
BROWN CHIARI, LLP BY: Timothy M. Hudson, Esq. HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General
Synopsis
In response to claimant's motion pursuant to CPLR 3124 and Mental Hygiene Law 33.13 seeking to compel the production of redacted medical records and behavioral assessments of the resident alleged to have assaulted claimant, the Court ordered their production for an in camera review.
Case information
| UID: | 2020-053-546 |
| Claimant(s): | HOLLIE BOJARSKI |
| Claimant short name: | BOJARSKI |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK, WESTERN NEW YORK DEVELOPMENTAL DISABILITY SERVICES OFFICE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130252 |
| Motion number(s): | M-95822 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | BROWN CHIARI, LLP BY: Timothy M. Hudson, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Michael T. Feeley, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 9, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The present action was commenced with the filing of a claim on September 12, 2017 seeking damages for personal injuries sustained by claimant on June 21, 2016. Claimant, a nurse practitioner and employee of Aspire of Western New York, Inc. (Aspire), alleges that she was struck by a patient who was a resident in a group home operated by an agency of the State of New York known as the Western New York Developmental Disability Services Office (WNYDDSO). Claimant brings the present motion pursuant to CPLR § 3124 and Mental Hygiene Law § 33.13 seeking to compel the defendant to provide redacted copies of medical records and behavioral assessments of the resident who is referred to in this litigation as John Doe. Claimant also seeks to compel the continuance of the depositions of two employees of the New York State Office for People With Developmental Disabilities (OPWDD), Patricia Sukadi and Stacey Michalski. The defendant opposes this motion.
Claimant served a notice to produce on defendant (Exhibit E) which sought copies of the WNYDDSO medical records pertaining to John Doe, including but not limited to the resident's behavioral assessments. The defendant responded by stating that it could not provide the requested records as the medical records of John Doe are confidential and privileged. Claimant contends that the disclosure of these records is necessary in order to determine the extent to which the defendant knew of John Doe's propensity for aggressive behavior. Claimant states that he does not seek any identifying information and that the requested records can be redacted by defendant to protect the identity of the resident. Claimant submits that he is seeking these records only to determine the extent of any prior knowledge of the defendant as to John Doe's known aggressive behavior. Finally, claimant contends that this request is consistent with the applicable provision of the Mental Hygiene Law (Mental Hygiene Law § 33.13) in that the interests of justice significantly outweigh the need for confidentiality (see Rice v Corasanti, 122 AD3d 1374 [4th Dept 2014]).
In opposition, the defendant initially contends that a request for a person's medical records first requires notice to that individual, citing to 45 CFR 164.512 (e) (1) (iii) (A) and Szmania v State of New York, 82 AD3d 1688 (4th Dept 2011). In response, claimant's reply states that they do not object to notification and if necessary, the appointment of a guardian for John Doe in such form as this Court may order. On the substantive issue, the defendant contends that the claimant's application should be denied because the documents requested are privileged pursuant to CPLR § 4504 and Mental Hygiene Law § 33.13 and that any clinical records of OPWDD regarding a resident and any testimony regarding these records are also confidential. Further, defendant contends that any incident or quality assurance records contained within those records are also confidential and privileged concerning residents (Mental Hygiene Law §§ 33.13, 33.25, 29.29 and Education Law § 6527 [3]).
The defendant argues that claimant has failed to meet his burden to demonstrate that the medical records sought are relevant to the issue in controversy and material and necessary (Shafir v World of Chantilly, Inc., 152 AD3d 814 [2d Dept 2017]). The defendant also contends that no duty was owed to claimant and that there is no theory of liability that can be premised on notice to the defendant (Adams v Elgart, 213 AD2d 436 [2d Dept 1995]; Fay v Assignment Am., 245 AD2d 783 [3d Dept 1997]; and Hover v Ramani, 268 AD2d 663 [3d Dept 2000]). Alternatively, the defendant contends that claimant has not met his burden to establish that the interests of justice significantly outweigh the need for and the right of a mentally disabled person for confidentiality (Bellamy v State of New York, 136 AD3d 1247 [3d Dept 2016]; Exelbert v State of New York, 140 AD2d 665 [2d Dept 1988] and Rice v Corasanti, 122 AD3d 1374 [4th Dept 2014]).
The claimant's notice to produce seeks to compel the production of a complete copy of medical records of the WNYDDSO of John Doe, as well as any medical records of John Doe's propensity for aggressive behavior and any behavioral assessments for a period of three years prior to the date of the June 21, 2016 incident (Exhibit E). The claimant alleges that John Doe was brought to her place of employment for medical treatment and alleges in her claim that the defendant had a a special relationship with John Doe, who was a resident at a group home for individuals with developmental disabilities owned and/or operated by the defendant. The defendant admits in its answer that John Doe was in the custody, care and control of the defendant. Contrary to defendant's argument, claimant does not allege that defendant had a duty to and failed to maintain, inspect or provide security to the premises of Aspire but rather alleges that the defendant failed to advise of John Doe's propensity for aggressive behavior. With respect to defendant's argument that no duty exists upon which to base this claim as the defendant and Aspire were co-treatment providers, this Court has already ruled in a decision in response to the defendant's pre-answer, pre-discovery CPLR 3211 (a) (7) motion to dismiss that issues of fact exist as to whether the claim states a cause of action (Bojarski v State of New York, UID No. 2018-053-526 [Ct Cl, Sampson, J. May 18, 2018]).
We are in the discovery phase of this litigation and the Court finds that claimant has demonstrated that disclosure of redacted records of the WNYDDSO of John Doe are relevant to determine the extent to which the defendant knew of John Doe's propensity for aggressive behavior and to determine the extent of any prior knowledge of the defendant as to that aggressive behavior. However, this disclosure is to be limited to non-medical information contained within those records as the Court finds that claimant has not demonstrated that the records sought regarding John Doe's aggressive behavior warrants access to medical record entries relating to diagnosis and treatment. In this regard, it has been held that "information concerning medical diagnosis and treatment is privileged and may not be disclosed absent a showing that a compelling interest overrides the privilege, or that the interests of justice significantly outweigh the need for and the right of a mentally disabled patient to confidentiality" (Bellamy v State of New York, 136 AD3d 1247, 1247-1248 [3d Dept 2016]; citing Exelbert v State of New York, 140 AD2d 665, 665 [2d Dept 1988]; see CPLR 4504; Mental Hygiene Law 33.13 [c] [1]).
For these reasons, the defendant is directed to submit to the Court copies of John Doe's medical record and any records relating to John Doe's propensity for aggressive behavior and all records of any behavioral assessments for a period of three years prior to the date of the June 21, 2016 incident for an in camera review to permit the Court to determine if there is any information of a non-medical nature that relates to his aggressive behavior or to any prior assaults or similar violent behavior (J.Z. v South Oaks Hosp., 67 AD3d 645, 646 [2d Dept 2009]). The defendant is directed to produce to the Court one unredacted copy of John Doe's records and a second copy that is redacted to eliminate those records and/or portions of those records which defendant believes to be privileged as medical diagnosis and treatment or that which defendant believes is irrelevant material.
Finally, with respect to claimant's request to compel the examinations before trial of defendant's employees, Patricia Sukadi, a Direct Support Assistant Trainee and Stacey Michalski, a Development Assistant 3, the Court agrees that following the production of any redacted records as set forth above, depositions of these two witnesses should be conducted. At that time, these witnesses may not be asked questions relating to medical treatment and diagnosis, including information related to them for this purpose by John Doe, as this is privileged and shall remain confidential (see Jayne v Smith, 184 AD3d 557, 559 [2d Dept 2020]; Bellamy, supra at 1248). However, both witnesses may be asked questions pertaining to their knowledge of maladaptive and aggressive behaviors by John Doe, including any prior assaults or attempted assaults. Such questioning may also include the time, place and the surrounding circumstances of this behavior; personal observations of John Doe's conduct in any instances of aggressive behavior; and whether either witness was ever concerned for their personal safety when in the presence of John Doe. Finally, these witnesses may also be asked the date that this information came within their knowledge.
Following the Court's completion of the in camera review of the records submitted, the Court will determine which portions, if any, are subject to disclosure and issue a further decision which will direct the parties as to the use of these records. If the Court determines upon in camera review of these records that notice to John Doe is required pursuant to 45 CFR 164.512 (e)(1)(iii)(A), the Court will then appoint a guardian for John Doe prior to any disclosure of these records.
December 9, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1) Notice of motion and affidavit of Timothy M. Hudson, Esq., sworn to August 18, 2020 with annexed Exhibits A-I; 2) Affidavit in opposition of Michael T. Feeley, Esq., Assistant Attorney General sworn to September 21, 2020 with annexed Exhibit A; and 3) Reply affidavit of Timothy M. Hudson, Esq., sworn to September 21, 2020 with annexed Exhibit A.