Opinion
Index No. 805156/2019 Motion Seq. No. 001
01-12-2024
HAROLD PORTER, Plaintiff, v. ALEXANDER RANCES, MATTHEW KOHLER, JONATHANN KUO, JESSICA AU, TANUJ PALVIA, RISA M. RAVITZ, LESLIE D. KERR, OLIVIA GHAW, CARRIE L. TONG, THE MOUNT SINAI HOSPITAL, THE ICAHN SCHOOL OF MEDICINE AT MOUNT SINAI, HUDSON PINE AND PAIN MEDICINE, P.C., and MOUNT SINAI HEALTH SYSTEMS, INC., Defendants.
Unpublished Opinion
MOTION DATE 11/08/2023
DECISION+ ORDER ON MOTION
HON. JOHN J. KELLEY, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 001) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141 were read on this motion to/for VACATE -ORDER/X-MOTION TO STRIKE ANSWER-EXTEND TIME .
In this action to recover damages for medical malpractice, the defendants Leslie D. Kerr, Olivia Ghaw, Carrie L. Tong, The Mount Sinai Hospital, and The Icahn School of Medicine at Mount Sinai (collectively the Mount Sinai defendants) move pursuant to CPLR 5015(a) to vacate this court's December 8, 2022 status conference order, and pursuant to CPLR 3103 for a protective order prohibiting the plaintiff from (a) inspecting his electronic medical records via a computer terminal that they will provide, and (b) obtaining an audit trail of those medical records. The plaintiff opposes the motion, and cross-moves pursuant to CPLR 3126 to strike the Mount Sinai defendants' answer for their failure to comply with the December 8, 2022 status conference order, and to extend his time to move to compel production of the audit trail. The Mount Sinai defendants' motion is denied, albeit without prejudice to their right to oppose any future motion to compel production of the audit trail, and, on or before February 15, 2024, the Mount Sinai defendants shall produce the plaintiff's electronic medical records for inspection by the plaintiff's counsel on a connected device and monitor. The plaintiff's cross motion is granted to the extent that his time to move to compel production of an audit trail is extended until April 18, 2024, and the cross motion is otherwise denied.
In a status conference order dated December 8, 2022, and entered December 9, 2022, the court, over the objection of the Mount Sinai defendants, directed that, "within 45 days the Mt. Sinai defendant[s] shall produce the plaintiff's E[lectronic] M[edical] R[ecords] for inspection by plaintiff's counsel on a connected device and monitor." The court further directed that "[w]ith respect to the demand for an audit trail, should counsel elect to do so they shall make the appropriate motion which shall include a showing of need for the audit trail and its relevance to the claims, or lack thereof, within 60 days of the date of this order." The Mount Sinai defendants did not produce the plaintiff's electronic medical records for inspection by the deadline set by the court, and no party timely moved with respect to the audit trail. Rather, after a remote status conference conducted on June 21, 2023, the court issued a further status conference order, providing that "Mt. Sinai defendants shall make any motions regarding inspection of the EMR w/in 21 days of the date of this order." The Mount Sinai defendants made the instant motion on July 11, 2023, and thus timely sought relief with respect to the inspection of the electronic medical records. Nonetheless, without seeking leave of court to extend their time to move with respect to the audit trail, they untimely sought a protective order as to the audit trail.
The Mount Sinai defendants failed to establish why the court should vacate its directive compelling them to produce the plaintiff's electronic medical records for inspection by the plaintiff's counsel on a connected device and monitor, as they have shown no prejudice, no potential violation of privilege, and no untoward inconvenience were they to provide the plaintiff's counsel with a connected computer terminal or device on which he could review the electronic records. Hence, the court denies those branches of their motion seeking to vacate the provision in the December 8, 2022 order setting forth that directive and for a protective order prohibiting the plaintiff from accessing those records in that manner. On or before February 15, 2024, the Mount Sinai defendants shall produce the plaintiff's electronic medical records for inspection by the plaintiff's counsel on a connected device and monitor. That branch of the Mount Sinai defendants' motion seeking a protective order prohibiting the plaintiff from obtaining an audit trail is denied as untimely, albeit without prejudice to raising any appropriate arguments in opposition to any future motion that the plaintiff elects to make with respect to that issue.
The plaintiff has not established that the Mount Sinai defendants' failure to provide access to his electronic medical records was willful and contumacious. Hence, that branch of his motion seeking sanctions must be denied (see Butler v Knights Collision Experts, Inc., 165 A.D.3d 406, 407 [1st Dept 2018]; Tanriverdi v United Skates of Am., Inc., 164 A.D.3d 858, 860 [2d Dept 2018]; Walter B. Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 A.D.3d 784, 785 [2d Dept 2008]). Nonetheless, should the Mount Sinai defendants fail to provide access to those records on or before February 15, 2024, they may be subject to the imposition of sanctions, including, but not limited to, preclusion of evidence at trial or the striking of their answer. Inasmuch as the plaintiff's attorney has indicated that, after reviewing the electronic medical records, he may conclude that it will not be necessary to obtain the audit trail, the court grants that branch of the plaintiff's motion seeking to extend his time to move to compel production of the audit trail, and extends that deadline until April 18, 2024, so that he has an opportunity to assess whether he believes the production of the audit trail is warranted and necessary. If the plaintiff elects to make such a motion, the Mount Sinai defendants may then oppose the motion and/or cross-move for a protective order, and thereupon reassert any arguments that they asserted in connection with their instant motion.
Due to the time needed to address these issues, the court extends the note of issue filing deadline until May 31, 2024.
Accordingly, it is,
ORDERED that the motion of the defendants Leslie D. Kerr, Olivia Ghaw, Carrie L. Tong, The Mount Sinai Hospital, and The Icahn School of Medicine at Mount Sinai is denied, without prejudice to their assertion, in connection with any future motion by the plaintiff, of any issues related to the production of an audit trail; and it is further, ORDERED that, on or before February 15, 2024, the defendants Leslie D. Kerr, Olivia Ghaw, Carrie L. Tong, The Mount Sinai Hospital, and The Icahn School of Medicine at Mount Sinai shall produce the plaintiffs electronic medical records for inspection by the plaintiff's counsel on a connected device and monitor that they shall provide to the plaintiffs counsel, and their failure to produce those records in that manner by that date may subject them to the imposition of a sanction; and it is further, ORDERED that the plaintiffs cross motion is granted to the extent that his time for making a motion to compel the production of an audit trail is extended until April 18, 2024, and the cross motion is otherwise denied; and it is further, ORDERED that, on the court's own motion, the deadline for the filing of a note of issue is extended until May 31, 2024.
This constitutes the Decision and Order of the court.