CPLR R. 3124
CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing
CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse
(a) Confidential information privileged
Jackson v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 02712 (App. Div., 3rd, 2009)
[P]laintiff commenced this second fraud action against defendants in Clinton County, again alleging that certain purported inconsistencies between other official documents and defendant's medical records for the victim, which plaintiff claims were [*2]fraudulently made, deprived him of the ability to present a viable defense at his criminal trial. Plaintiff filed an amended notice of discovery (see CPLR 3120) seeking limited "non-medical information" in defendants' medical records regarding the victim, relating strictly to "time data" for the date of the victim's death, namely "time of all calls" to Jamaica Hospital, "time of arrival" at its emergency room and "time of death." Plaintiff requested that all confidential and privileged material be redacted (see CPLR 4504 [a]).
Defendants did not respond to plaintiff's discovery demand, so plaintiff moved to compel a response (see CPLR 3124). Jamaica Hospital cross-moved to deny that relief. Supreme Court (Dawson, J.) granted plaintiff's motion and denied Jamaica Hospital's cross motion. Jamaica Hospital now appeals.
Jamaica Hospital has not demonstrated that res judicata applies to this motion. Under that doctrine, a prior valid final judgment on the merits precludes litigation between the same parties of any claim that was or could have been raised in the prior action (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12 [2008]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Kinsman v Turetsky, 21 AD3d 1246, 1246-1247 [2005], lv denied 6 NY3d 702 [2005]). Supreme Court, Queens County merely denied plaintiff's unopposed motion to compel disclosure [FN1] due to lack of standing, which is not a determination "on the merits" (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d at 13-14 and n 3). Likewise, the record does not indicate that there has been a "final judgment" rendered in the Queens County matter (Parker v Blauvelt Volunteer Fire Co., 93 NY2d at 347). Thus, Jamaica Hospital has not shown that the Queens County order precludes plaintiff's present motion to compel discovery.
The documents that plaintiff seeks, as redacted, are not privileged and must be disclosed. Jamaica Hospital, as the party objecting to disclosure, bore the burden of proving its assertion that the material sought is privileged under CPLR 4504 (a) and the federal Health Insurance Portability and Accountability Act (42 USC § 1320d et seq. [hereinafter HIPAA]; see Koump v Smith, 25 NY2d 287, 294 [1969]; see also Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). The physician-patient privilege "prohibits disclosure of any information acquired by a physician 'in attending a patient in a professional capacity, and which was necessary to enable [the physician] to act in that capacity'" (Dillenbeck v Hess, 73 NY2d at 284, quoting CPLR 4504 [a]; see State of New York v General Elec. Co., 201 AD2d 802, 802-803 [1994]). The very narrow information sought by plaintiff regarding when certain events occurred, as documented in the victim's medical records on the date of his death was not information necessary to the victim's medical treatment; it was merely documented facts regarding time data that would be obvious to a layperson (see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]; Henry v Lewis, 102 AD2d 430, 437 [1984] [dates and times of treatment not privileged]; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]; People v Elysee, 49 AD3d 33, 37-39 [2007], affd 12 NY3d 100 [2009]; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 113 AD2d 49, 55 [1985], affd 69 NY2d 232 [1987], cert denied 482 US 928 [1987]). Hence, the information was not privileged under state law. [*3]
HIPAA regulates disclosure of "protected health information," which includes "individually identifiable health information," defined as health information that "[i]s created or received by a health care provider . . . and [r]elates to past, present, or future physical or mental health or condition of an individual[,] the provision of health care to an individual [or payment therefor]," and identifies the patient or which reasonably could be so used (45 CFR 160.103; see 42 USC 1320d [6] [B]; Arons v Jutkowitz, 9 NY3d 393, 413 [2007]). The time data sought by plaintiff cannot be characterized as protected health information, as it has no apparent connection to the victim's physical condition or medical care. As Jamaica Hospital failed to demonstrate that the circumscribed redacted time data is privileged, Supreme Court properly denied its cross motion and granted plaintiff's motion to compel a response to his amended notice for discovery.
CPLR § 4503 Attorney
(a) 1 Confidential communication privileged
Straus v Ambinder, 2009 NY Slip Op 02772 (App. Div., 2nd, 2009)
The plaintiff met his burden of proving that the subpoenaed documents were protected by the attorney-client privilege (see CPLR 3101[b], 4503[a]; Matter of Priest v Hennessy, 51 NY2d 62, 69). While a court is not bound by the conclusory characterizations of a client or his attorney, here, there was no reason to disregard the attorney's sworn statement regarding the nature of the engagement of the accounting firm (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379-380).
In any event, the plaintiff also established that the requested documents were protected as material prepared by the accountants for his attorneys in anticipation of litigation (see CPLR 3101[d][2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266 AD2d 117 ). Where, as here, the party seeking to prevent disclosure makes the required showing that the documents were prepared [*2]solely for litigation, the burden shifts to the party seeking disclosure to establish that there is a substantial need for the materials and they cannot be obtained elsewhere without undue hardship (see Volpicelli v Westchester County, 102 AD2d 853; Zimmerman v Nassau Hosp., 76 AD2d 921). Inasmuch as the defendant failed to show that he could not obtain the requested documents without undue hardship, the Supreme Court properly issued the protective order.
The bold is mine.
