Opinion
3442-02.
May 19, 2008.
Stillman Stillman, By: Christopher McCollum, Esq., Attorney for plaintiffs, Bronx, NY.
Julie A. Linwood, Esq., McDonnell Adels, P.C., Attorneys for Defendants, Garden City, NY.
Howard Stern, Esq., Werner, Zaroff, Stern, Ashkenazcz, LLP, Attorney for counterclaim, Lynbrook, NY.
The following papers have been read on this motion: Notice of Motion (pltf.on counterclaim), dated 2-16-08 .................. 1 Notice of Motion (def), dated 4-4-08 .................................... 2 Affirmation in Support (def.), dated 5-1-08 ............................. 3 Affirmation in Opposition (def.), dated 5-2-08 .......................... 4 Reply Affirmation, dated 5-8-08 ......................................... 5 Affirmation in Reply, dated 5-9-08 ...................................... 6
The motion by the plaintiffs on the counterclaims pursuant to CPLR 3101 and CPLR 3124 for an order vacating the defendant's demand for discovery and inspection dated January 30, 2008 to the extent the demand requires the production of privileged information and/or documents, and compelling a response to plaintiffs' demand for discovery and inspection dated March 12, 2008, and the defendant's motion pursuant to CPLR 3103 and CPLR 3124 for a protective order regarding the March 12, 2008 demand, and for an order compelling a response to its January 30, 2008 demand, are decided as follows.
The nature and history of this case have been set forth in prior orders of this Court and will not be repeated here.
The Defendant's Demand dated January 30, 2008
Initially, the Court disagrees with the defendant that the plaintiffs' motion for a protective order is untimely, in that no formal objection was made within 20 days, and thus should be rejected out of hand. See, CPLR 3122(a). The January 30 demand was the subject of a conference order of this Court dated February 20, 2008, directing a response by March 12, 2008. Further, upon discussions at a further conference, and by order dated April 1, 2008, the Court established a schedule for the instant motion practice regarding this and the plaintiffs' own demands, discussed below. These conference orders had the effect of extending both parties's time to place the dispute before the Court ( see, CPLR 2004), and thus it will address the substance of all the present applications.
Defendant seeks copies of "all non-privileged non-confidential documents in plaintiffs' possession" regarding two proceedings by the Department of Health State Board for Professional Medical Conduct ("BPMC") against Dr. Chamberlin, ultimately leading to the revocation of his license to practice medicine. Matter of Chamberlin v New York State Board for Professional Med. Conduct, 34 AD3d 1097 (3d Dept. 2006). Also sought are copies of evidence received and transcripts of the testimony of named physician witnesses, and an authorization to obtain copies of all non-privileged non-confidential documents maintained by the attorneys who represented Dr. Chamberlin in these BPMC proceedings. Finally, defendant seeks the names, addresses and salary or other payment records of all employees and independent contractors working for the plaintiffs. The only issue raised by the plaintiffs in their motion concerns the BPMC records themselves.
It should be noted that no party has separated the two proceedings for purposes of these motions, nor has any argument been raised regarding Dr. Chamberlin's status as a non-party.
The records must be produced. Relevancy and materiality are not disputed, and plaintiffs rely wholly on Public Health Law § 230(9), which shields BPMC proceedings and allied records from disclosure. However, because the proceedings were terminated against him, with charges and discipline being sustained upon administrative and court review, there is no basis for plaintiffs to resist the disclosure sought. See, Anonymous v Bureau of Professional Med. Conduct/State Bd. for Professional Med. Conduct, 2 NY3d 663, 670-671 (2004) [denying disclosure under Public Health Law § 230(9), but because no significant charge against the physician was sustained]. Moreover, the Court disagrees with plaintiffs' position that disclosure is limited only to those types of documents identified in Public Health Law § 230(1)(g). The Court of Appeals distinguished that subsection from (9), indicating that (1)(g) had been added to allow release of certain information to the public prior to completion of the administrative review process. Id., at 670. The proceedings here are completed, and thus this section, and its limited list of discoverable documents, does not apply.
That subsection identifies committee findings, conclusions, determinations and any order as the types of documents that may be disseminated under its authority.
To the extent that the records that must be produced under this order might be "privileged" or "confidential" for other reasons, the Court notes that the defendant sought only those documents that do not fall within the ambit of those classifications. However, the plaintiffs are reminded that any assertion of privilege or confidentiality must be accompanied by a statement briefly describing the document either not produced or redacted, and the basis for the nonproduction or redaction. Any explanation found unsatisfactory to the defendant should lead to in camera review of the disputed document or documents. See, Liquore v Tri-Arc Mfg. Co., 32 AD3d 904 (2d Dept. 2006).
This is to be done by way of submission to chambers by the plaintiffs of an unredacted copy, a copy marked with brackets to indicate the proposed redaction, and a second unredacted copy that may be produced to the defendant by the Court in accord with its review. The Court will thereafter return to the producing plaintiff its unredacted copy of documents turned over to the defendant, with any redactions by the Court indicated to the plaintiffs by way of a see-through marking. Chambers should be contacted for scheduling instructions, should the need arise.
Finally, any and all records produced are not to be further disseminated by either party, defendant and are to be utilized only for purposes of the instant litigation.
Accordingly, the motion by the plaintiffs for a protective order regarding the defendant's demand dated January 30, 2008 is denied, and the motion by the defendant to compel compliance with this demand is granted, all in accord with this decision and order.
The Plaintiffs' Demand dated March 12, 2008
This demand was made by the plaintiffs qua plaintiffs, and was served by their attorney in that main action. However, no procedural objection by the defendant is made based upon the standing of the plaintiffs as defenders of the counterclaims asserted by defendant, with regard to which they are represented by separate counsel, the movant here.
In their demand the plaintiffs seek three categories of documents. They are 1) copies of "all non-privileged non-confidential" documents contained in the no-fault files maintained by the defendant with respect to the claims assignors identified in the pleadings, including claims logs, medical treatment claims records, and documents related to claims handling; 2) copies of "all non-privileged non-confidential" records of intra-company communications regarding the subject claims, or with "any other entity or individual" concerning the same; and 3) with regard to any personal injury claim brought by any of the assignors whose no-fault claims are the subject of the present litigation, "all non-privileged non-confidential" documents that may be found in a claim file maintained by the defendant or any affiliated entity as insurer of a party against whom the personal injury claim was made. By way of a reply affirmation of counsel, this last demand has been narrowed to: a) jury verdict or evidence of settlement; b) deposition transcripts of any assignor; c) bills of particulars relating to any assignor claim, and d) medical reports and records relating to an assignor claims.
The objection by the defendant are as follows: the demands are overly broad, burdensome and ambiguous; they seek privileged matter, including material prepared in anticipation of litigation and documents representing attorney-client communications; the medical records of the assignors are irrelevant; and the demands are not accompanied by a HIPAA compliant authorization form. It also asserts, in effect, that it has already produced a witness for an examination before trial but that none of these requests were made at that time, and thus are improperly sought now.
Initially, the Court must reject the claim that the plaintiffs in effect waived these demands by not pursuing them earlier. Pre-trial discovery is still open, and the plaintiffs are not seeking an additional examination of the defendant. The decisions cited by defendant in support of their position concerned, unlike the multi-claim present case, simpler matters where the Appellate Division found that the demands at issue either unnecessarily complicated the discovery process, or represented a duplication of discovery already conducted. See, Village of Mamaroneckv State of New York, 16 AD3d674(2d Dept. 2005); Palermo Mason Constr., Inc. v Aark Holding Corp., 300 AD2d 460 (2d Dept. 2002). In the instant case the allegations found in the counterclaims are connected to treatment for numerous patients, and rest on multiple allegations of fraudulent acts.
The Court agrees with defendant that a document request cannot be used to determine if documents exist, as this can result in the classic and disfavored "fishing expedition." Penn Palace Operating, Inc. v Two Penn Plaza Assocs., 215 AD2d 230 (1st Dept. 1995). Here, however, there can be little doubt that there are documents relating to the assignors' claims in defendant's no-fault files, and intra-communications between and among its employees regarding those claims. The only category that might give one pause is the request regarding lawsuits, as there is nothing to indicate that any such lawsuits were brought. However, it is doubtful that any one of defendant's employees would be privy to that information. Moreover, as each and every claim was the result of an automobile accident, it is not unreasonable to presume that at least some of these accidents led to law suits. Under these circumstances, the request appears to be a legitimate method of obtaining such information.
The Court now turns to the more specific objections. Defendant's counterclaims assert fraud based upon Dr. Chamberlin's alleged falsification of his records to reflect procedures not performed, and based upon claims made for procedures performed unnecessarily. Medical records of the assignors in defendant's possession clearly are relevant and material and thus subject to disclosure because they may support or undermine plaintiffs' claims for an insurance payment in a given case, thus serving to prove or disprove the fraud in such case. See generally, Allen v Crowell-Collier Pub. Co., 21 NY2d 403 (1968); cf, People ex. rel. Spitzer v Pharmacia Corp., 39 AD3d 1117 (3d Dept. 2007).
It is true that medical records of the assignors that came into defendant's possession as a result of an application for insurance benefits — the case here — retain their privileged character, in that there is no waiver of the physician-patient privilege by dint of such application. CPLR 4504(a). Although the statute is in derogation of the common law, the "privilege is to be given a 'broad and liberal construction to carry out its policy'." Matter of Grand Jury Investigation in N. Y. County, 98 NY2d 525 (2002), quoting Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130 (1983). Records that were received by GEICO from the plaintiffs or Dr. Chamberlin for the purposes of insurance claims processing clearly fall within this category, but just as clearly will not be seen in this litigation by any party other than those an assignor would reasonably understand would have access to them in the first instance. The Court thus finds that the purposes of CPLR 4504(a) will not be offended by permitting the disclosure sought. Cf., Matter of Grand Jury Investigation in N. Y. County, supra.
Nor does HIPAA trump the CPLR provision discussed here as a matter of Federal preemption, inasmuch as preemption is limited to those situations where state law prohibits or restricts a disclosure that the HIPAA privacy rules actually mandate. Arons v Jutkowitz, 9 NY2d 393, 414-415 (2007). Accordingly, no authorization by the assignors, HIPAA-compliant or otherwise, will be required.
To the extent defendant GEICO contends that certain records in their files came into its possession from a source other than plaintiffs and Dr. Chamberlin, it may assert any appropriate privilege under the CPLR. Relatedly, any claim that a document is protected as an attorney-client communication, or was prepared in anticipation of litigation, may be withheld, but only upon compliance with the procedures identified above concerning the defendant's own demands, including, if necessary, an in camera review.
As with the records that are the subject of defendant's own demands, there is to be no dissemination of any documents beyond the parties to this litigation.
Finally, the Court does not find the requests to be overbroad notwithstanding the use of "all" or "any and all" in the requests, as the categories of documents sought are described with reasonable particularity. While production will undoubtedly take time and effort, neither party can escape the difficulties attendant to such production where the plaintiff asserts fifty-three causes of action and the defendant counterclaims for fraud concerning several dozen patients and over two hundred fifty separate wrongful acts. However, the Court finds it appropriate to direct that the plaintiffs, as the party requesting what may be a voluminous document production, bear the reasonable cost of necessary photocopying and binding. See, Matter of Krissler Bus. Inst. [King], 244 AD2d 486 (2d Dept. 1997).
The defendant shall bear such cost with regard to its document request.
Accordingly, with regard to the plaintiffs' demand dated March 12, 2008 the defendant's motion for a protective order is denied, and the plaintiffs' motion is granted, in accord with this decision and order.
In view of the time the disclosure directed above may take, the conference previously scheduled for June 9, 2008 is adjourned until July 9, 2008.
This shall constitute the Decision and Order of this Court.