Opinion
328210.
Decided March 25, 2004.
Keegan and Horowitz Garden City, NY, for petitioner.
Jules A. Epstein, Esq. Garden City, NY, for respondents, Pettrina Carella, and Michael Nardulli.
Charles G. Mills, Esq. Glen Cove, NY, for respondent, The American Legion.
Seth Rubenstein, Esq. Brooklyn, NY. for respondent, The Seeing Eye, Inc.
Thompson Hine LLP New York, NY, for Make-A-Wish Foundation of America.
Sidney Siller, Esq. New York, NY, for Respondent, Disabled American Veterans.
Attorney General of the State of New York New York, NY, for ultimate charitable beneficiaries.
Lorene S. King, Sr. Director Legal Dept., St. Jude Children's Research Hospital, Memphis, TN.
In this proceeding to determine the validity of the surviving spouse's right of election (SCPA 1421; EPTL 5-1.1-A), it is alleged that the surviving spouse abandoned the decedent, disqualifying her from claiming an elective share (EPTL 5-1.2[a][5]). The respondents in the proceeding are the executor and the trustees and beneficiaries of the decedent's revocable lifetime trust. The beneficiaries of the trust, including several charities, have appeared in the proceeding, as has the Attorney General on behalf of the charities. One of the charitable residuary beneficiaries now moves the court for an order compelling the surviving spouse to execute a consent or authorization for the taking of the deposition of her physician and the production of her medical records. The motion has the support of the executor and the trustees of the lifetime trust; it is opposed by the surviving spouse.
On January 9, 2004, the attorney for the trustees served Dr. Charles Barbanel with a subpoena to take his oral deposition on February 3, 2004. At the same time, the subpoena directed Dr. Barbanel to produce on February 3, 2004 at the office of the trustees' attorney all medical and/or psychiatric records now in his custody pertaining to the surviving spouse, Pasquelina Carella. Dr. Barbanel responded by letter dated January 20, 2004 indicating that because of the rules of confidentiality, he could not discuss anything about his patient without her permission. The doctor did not appear for the noticed deposition or produce any medical records.
Based upon the affirmation of the surviving spouse's attorney in opposition to this motion, it is clear that she does not consent to Dr. Barbanel's examination and/or production of her medical records.
CPLR 3120 now permits a party to serve a subpoena duces tecum to produce and permit inspection of documents in the possession of a non-party without court order (CPLR 3120 as amended by L 2002, ch 575, § 2, effective 9/1/03). CPLR 3106[b] permits a party to notice an examination before trial of a non-party witness by service of a subpoena upon the witness. Recent amendments to CPLR 3122(a) affect discovery of protected health information in the context of a subpoena duces tecum served upon a health care provider (CPLR 3122[a] as amended by L 2002, ch 575, § 3, eff. 9/1/03). The amendments require, first, that any subpoena seeking the disclosure of medical information be accompanied by an authorization executed by the patient. Second, the subpoena itself must set forth in conspicuous bold faced type that if it is not accompanied by the required authorization, it must be disregarded by the health care provider. Third, the statute implies that there is an affirmative obligation on the provider to refuse to provide the information if the requirements of the statute are not met. The Courts have also required that the authorization accompanying the subpoena comply with the federal Health Insurance Portability and Accountability Act (known as "HIPAA") and the regulations promulgated thereunder by the United States Secretary of Health and Human Services ( Campos v. Payne, NYLJ, Oct. 14, 2003, at 17, col 2). Clearly, the subpoena for medical records served on Dr. Barbanel did not comply with CPLR 3122(a) and was properly ignored by him.
Since a proper subpoena duces tecum for medical records must include an authorization and the patient has refused to execute such a consent or authorization, the party seeking the records must obtain a court order directing the refusing patient-party to provide an authorization ( cf., CPLR 3122, CPLR 3124, CPLR 2308). In this case whether an authorization should be compelled depends on the patient's claim of privilege (CPLR 4504).
The movants seek three different types of discovery from Dr. Barbanel. First, the trustee testified at her deposition that Dr. Barbanel told the decedent while his wife was hospitalized that she neither wanted to see the decedent, nor that he be there when she came home from the hospital. Respondents seek to examine the doctor concerning these conversations with the decedent. Secondly, they seek to examine the doctor concerning conversations with the surviving spouse to the effect that she did not want to see her husband again. The surviving spouse testified at her deposition, wherein all objections except as to the form of questions were reserved for trial, as follows:
"Q. Did you ever tell Dr. Barbanel that you wanted to end your marriage with Frank?
A. I told him that I didn't want him anymore to have him back . . .
A. I told him I don't want him no more. I didn't want him back . . .
Thirdly, respondents seek all medical and psychiatric records pertaining to Dr. Barbanel's treatment of the petitioner, the surviving spouse Pasqualina Carella. The moving respondent limits his request to the doctor's notes of the purported conversations, but the subpoena seeks all of the patient's records.
When a privilege is designed to protect an individual by keeping certain information or conduct secret, that protection may be deemed waived where the individual affirmatively places that information or conduct in issue ( Green v. Montgomery, 95 NY2d 693; Dillenbeck v. Hess, 73NY2d 278, 287; Koump v. Smith, 25 NY2d 287, 294). The court fails to see how the petitioner, by seeking her elective share, has placed her mental condition in issue allowing inquiry into otherwise privileged communications or records. There has been no explicit waiver of the privilege by petitioner's answers to questions at a deposition in which she reserved the right to object on the grounds of privilege. On the other hand, conversations between the doctor and the decedent are apparently not privileged.
Accordingly, the motion to direct the petitioner to execute an authorization for her psychiatric records held by Dr. Barbanel is denied. Respondent, however, may issue a new subpoena ad testificandum to the doctor for his examination at this court. He may be questioned concerning non-privileged matters. If he fails to respond, remedies may be sought pursuant to CPLR 2308(b).
Settle order.