Opinion
Submitted March 28, 2001.
April 16, 2001.
In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Gigante, J.), dated April 18, 2000, as granted the plaintiff's motion to strike its answer to the extent of directing that it provide the plaintiff with copies of all medical records of the assailant, including all psychiatric records, with confidential information redacted.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N Y (Brian Del Gatto, Deborah J. Denenberg, and Christine Bernstock of counsel), for appellant.
Akin Smith, LLC, New York, N.Y. (Andrew S. Alitowski of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
While the plaintiff was a psychiatric patient at the defendant hospital, he was allegedly assaulted by another psychiatric patient. As a result, he commenced the instant action against the defendant, claiming that it was negligent in permitting patients with violent propensities to associate with other patients. During discovery, the plaintiff sought a complete copy of all medical records of his assailant, including all psychiatric records.
Clinical information tending to identify patients or clients and clinical records maintained at a facility licensed or operated by the New York State Office of Mental Health shall not be released except pursuant to a court order requiring disclosure upon a finding that the "interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13[c][1], [e]). The Supreme Court failed to make the requisite finding. In addition, the Supreme Court erred in directing the defendant to redact confidential information. The proper procedure is for the Supreme Court to conduct an in camera review of the assailant's records, and determine if they contain information of a nonmedical nature relating to any prior assaults or similar violent behavior by the assailant that should be disclosed (see, Moore v. St. John's Episcopal Hosp., 89 A.D.2d 618; Brier v. State of New York, 95 A.D.2d 788; Villano v. State of New York, 127 Misc.2d 761; see also, Lee v. New York City Tr. Auth., 257 A.D.2d 611; Matter of Ashford v. Brunswick Psychiatric Ctr., 90 A.D.2d 848; Mayer v. Albany Med. Center Hosp., 37 A.D.2d 1011). Accordingly, the matter is remitted to the Supreme Court, Kings County, to determine whether the records should be disclosed, and, if necessary, to conduct an in camera review of the assailant's records.
O'BRIEN, J.P., FRIEDMANN, GOLDSTEIN and SMITH, JJ., concur.