Bonner v. Lynott

• Decision Date: 31 March 2022
• Docket Number: 532821
• Citation: 203 A.D.3d 1526,166 N.Y.S.3d 325
• Parties: Kim M. BONNER, Appellant, v. Patricia LYNOTT, as Representative of the Estate of William Wittlin, Deceased, Respondent.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1526
166 N.Y.S.3d 325

Kim M. BONNER, Appellant,
v.
Patricia LYNOTT, as Representative of the Estate of William Wittlin, Deceased, Respondent.

532821

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 10, 2022
Decided and Entered: March 31, 2022

166 N.Y.S.3d 328

Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Raymond M. Schlather of counsel), for appellant.

Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Kevin E. Hulslander of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from an order of the Supreme Court (McBride, J.), entered January 5, 2021 in Tompkins County, which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff was appointed to a residency program at the State College of Veterinary Medicine at Cornell University for a one-year term beginning in July 2013. In December 2013, plaintiff was placed on a three-month period of probation due to concerns with her performance. Despite some improvement, plaintiff's performance issues persisted, and her probationary period was extended for an additional three months. Shortly thereafter, plaintiff took a seven-week leave of absence upon the recommendation of her treating psychiatrist, William Wittlin.

Following her return from leave, plaintiff began a rotation under the supervision of Elizabeth Buckles, an associate clinical professor at Cornell's College of Veterinary Medicine. During a subsequent meeting with Buckles to discuss her performance, plaintiff allegedly displayed certain erratic and concerning behavior. The next day, Buckles expressed her concerns regarding plaintiff to Gabriel Tornusciolio, a psychologist at Cornell's Faculty and Staff Assistance Program. Tornusciolio, in turn, contacted Wittlin. During the conversation that ensued, Tornusciolio provided a summary of plaintiff's behavior as reported to him. In response, Wittlin informed Tornusciolio that he was "aware of [plaintiff's] deterioration," that plaintiff "was a mess last time [he] saw her" and that he was unaware of any suicidal behavior or ideation. Following the phone call, Tornusciolio sent an email to Buckles and Mary Elizabeth Jordan, the Director of Human Resources for Cornell's College of Veterinary Medicine, informing them of the substance of his conversation with Wittlin.

Ultimately, a meeting was held to discuss plaintiff's performance and whether she should be reappointed to the residency program for a second year. Seven faculty members, including Buckles, were present at the meeting. Following the meeting, the seven faculty members issued written votes as to whether to renew plaintiff's appointment for a second year. Five of the seven members voted to deny reappointment to the program based on plaintiff's inability to complete her duties in a timely manner. The results of the vote were then submitted to the department chair, who accepted the vote. Plaintiff was later informed of the decision denying reappointment by letter dated September 10, 2014.

Plaintiff filed a complaint with the State Division of Human Rights (hereinafter SDHR) for unlawful discrimination based

166 N.Y.S.3d 329

upon her claimed mental disability, but that complaint was dismissed upon the finding that there was no probable cause to conclude that Cornell had engaged in any unlawful discriminatory practices. She then commenced a CPLR article 78 proceeding alleging that the decision not to reappoint her was arbitrary and capricious and constituted a denial of due process, which Supreme Court (Rumsey, J.) dismissed. Plaintiff thereafter commenced this action alleging a breach of physician-patient confidentiality and medical malpractice. Prior to the completion of discovery and before any depositions had been conducted, Wittlin moved for summary judgment dismissing the complaint.¹ Supreme Court (McBride, J.) granted the motion, finding that the information disclosed by Wittlin was not confidential and that plaintiff failed to raise a triable issue of fact as to whether she sustained any damages as a result of the alleged breach of confidentiality. Plaintiff appeals.

Pursuant to CPLR 4504(a), a physician may not "disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity," unless the patient waives the privilege. "The privilege applies not only to information orally communicated by the patient, but also to information ascertained by observing the patient's appearance and symptoms, unless those factual observations would be obvious to lay observers" ( Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d 46, 53, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016] ; see Dillenbeck v. Hess, 73 N.Y.2d 278, 284, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989] ). Although there is no private cause of action pursuant to CPLR 4504 (see Burton v. Matteliano, 81 A.D.3d 1272, 1275, 916 N.Y.S.2d 438 [2011], lv denied 17 N.Y.3d 703, 2011 WL 2314370 [2011] ; Waldron v. Ball Corp., 210 A.D.2d 611, 614, 619 N.Y.S.2d 841 [1994], lv denied 85 N.Y.2d 803, 624 N.Y.S.2d 373, 648 N.E.2d 793 [1995] ; see generally Lightman v. Flaum, 97 N.Y.2d 128, 136–137, 736 N.Y.S.2d 300, 761 N.E.2d 1027 [2001], cert denied 535 U.S. 1096, 122 S.Ct. 2292, 152 L.Ed.2d 1050 [2002] ), a patient may maintain a cause of action for breach of confidentiality against his or her physician resulting from the unauthorized disclosure of medical information (see Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 53, 29 N.Y.S.3d 879, 49 N.E.3d 1171 ; Razzano v. Goldman, 178 A.D.3d 866, 867, 113 N.Y.S.3d 735 [2019] ; MacDonald v. Clinger, 84 A.D.2d 482, 485–486, 446 N.Y.S.2d 801 [1982] ). "The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician's acquisition of information relating to the patient's treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient's medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages" ( Chanko v. American Broadcasting Cos. Inc., 27 N.Y.3d at 53–54, 29 N.Y.S.3d 879, 49 N.E.3d 1171 ; accord Razzano v. Goldman, 178 A.D.3d at 867, 113 N.Y.S.3d 735 ).² Upon her motion for summary judgment, defendant bore the burden

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of making a prima facie showing that plaintiff will be unable to establish at least one of these elements (see Razzano v. Goldman, 178 A.D.3d at 867–868, 113 N.Y.S.3d 735 ; see generally James v. Flynn, 132 A.D.3d 1214, 1215, 19 N.Y.S.3d 618 [2015] ; Schrowang v. Biscone, 128 A.D.3d 1162, 1163, 9 N.Y.S.3d 420 [2015] ).

Here, there is no dispute that a physician-patient relationship existed between Wittlin and plaintiff, that the information disclosed was acquired during Wittlin's treatment of plaintiff and that plaintiff did not consent to such disclosure. With regard to the remaining elements, Supreme Court first found that the information disclosed by Wittlin was not "confidential" inasmuch as it was already known by Buckles, Tornusciolio and Jordan. We cannot agree. Although some or all of these individuals may have already known that plaintiff was being treated by Wittlin due to the fact that her leave of absence was supported by a physician's note signed by him,³ they were not aware that Wittlin was of the professional medical opinion that plaintiff's mental health condition was deteriorating. Accordingly, defendant failed to make a prima facie showing that no confidential information had been disclosed by Wittlin (see Razzano v. Goldman, 178 A.D.3d at 868, 113 N.Y.S.3d 735 ).

We also disagree that defendant established, as a matter of law, that plaintiff failed to demonstrate any cognizable damages that were proximately caused by Wittlin's alleged breach of confidentiality. Initially, plaintiff's claimed damages are not, as defendant argues, limited to those related to the decision not to reappoint her. The complaint, as amplified by the bill of particulars, alleges that plaintiff suffered mental distress and related emotional harm as a direct result of the disclosure of her confidential medical information. Because a breach of physician-patient confidentiality is actionable as a tort (see Burton v. Matteliano, 81 A.D.3d at 1274, 916 N.Y.S.2d 438 ; Doe v. Community Health Plan–Kaiser Corp., 268 A.D.2d 183, 187, 709 N.Y.S.2d 215 [2000] ; Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 [1989] ), plaintiff may recover for emotional harm so long as "the mental injury is a direct, rather than a consequential, result of the breach and ... the claim possesses some guarantee of genuineness" ( Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008] [internal quotation marks and citation omitted]; see Fox v. Mark, 181 A.D.3d 560, 564, 118 N.Y.S.3d 726 [2020], lv denied 35 N.Y.3d 917, 2020 WL 6790136 [2020] ). Although defendant contends that plaintiff will be unable to establish at trial that she sustained any actual damages as a direct result of Wittlin's breach of confidentiality, "it is well settled that a party moving for...