Atkins v. Guest
| Decision Date | 22 February 1994 |
| Parties | Robert C. ATKINS, M.D., Petitioner-Appellant, v. C. Maynard GUEST, M.D., etc., Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and ELLERIN, WALLACH, KUPFERMAN and NARDELLI, JJ.
Judgment, Supreme Court, New York County (Peter Tom, J.), entered August 5, 1993, which denied petitioner's motion to quash the subpoena duces tecum issued by respondent for the medical records of petitioner's patient and to compel respondent to produce the complaint against petitioner, and which granted respondent's cross-motion to enforce its subpoena, 158 Misc.2d 426, 601 N.Y.S.2d 234, unanimously affirmed, without costs.
After a complaint was filed with the State Board for Professional Medical Conduct against petitioner, a New York State licensed physician, alleging acts of professional misconduct, and an investigation conducted, respondent authorized the issuance of a subpoena directed to petitioner to produce all medical records and correspondence pertaining to the patient in question, to aid in the investigation. Petitioner refused to comply with the subpoena and, by order to show cause, moved to quash the subpoena and to compel disclosure of the complaint, and respondent cross-moved to compel compliance with the subpoena. The IAS court reviewed the complaint and other supporting documentation in camera and concluded, inter alia, that respondent had made the minimal threshold showing of authenticity and factual basis necessary to sustain issuance of the subpoena.
Petitioner contends that the IAS court erred in reviewing evidence in camera to determine whether issuance of the subpoena was warranted. He also argues, for the first time on appeal, that in camera examination is only appropriate "in those cases warranting ... extraordinary review"; that respondent failed to make a preliminary showing that an in camera review was necessary; and that the in camera review violated his due process rights.
The showing made by respondent was sufficient to establish "the delicacy of [the] investigation or the risk of and consequences attendant on premature disclosure" (Matter of Levin v. Murawski, 59 N.Y.2d 35, 42, fn. 4, 462 N.Y.S.2d 836, 449 N.E.2d 730). Moreover, the statutory requirement of confidentiality (Public Health Law § 230[11][a] warranted submission of materials for in camera review. Confidentiality can serve to prevent harassment of the complainants or the patients involved. Here, petitioner conceded that he wanted the complaint for purposes of bringing a civil action in defamation against the complainant and respondent. Prevention of such action was warranted (see, Matter of Levin v. Guest, 112 A.D.2d 830, 832, 492 N.Y.S.2d 749, aff'd, 67 N.Y.2d 629, 499 N.Y.S.2d 680, 490 N.E.2d 546). Moreover, had the IAS court complied with petitioner's...
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