Cynthia B. v. New Rochelle Hosp. Medical Center

• Decision Date: 01 December 1983
• Citation: 470 N.Y.S.2d 122,60 N.Y.2d 452,458 N.E.2d 363
• Parties: , 458 N.E.2d 363 CYNTHIA B. et al., Respondents, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER et al., Defendants, and Mary M. Curtis et al., Respondents, New York Hospital, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 122

470 N.Y.S.2d 122

60 N.Y.2d 452, 458 N.E.2d 363

CYNTHIA B. et al., Respondents, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER et al., Defendants and Mary M. Curtis et al., Respondents New York Hospital, Appellant.

Court of Appeals of New York.

Dec. 1, 1983.

[458 N.E.2d 364] Robert E. Crotty, Susan H. Rockford and Robert A. Horowitz, New York City, for appellant

Paul F. McAloon and Abraham Fuchsberg, New York City, for Cynthia B. and another, respondents.

John J. Pilkington, Mount Vernon, for Mary M. Curtis and another, respondents.

OPINION OF THE COURT

COOKE, Chief Judge.

When a party moves to compel discovery of medical records, in this case psychiatric records, a treating hospital, physician or other institution who is custodian of the records may request a protective order on the ground that disclosure of all or part of the record may be seriously detrimental to the interests of the patient, to uninvolved third parties, or to an important program of the custodian of the records, notwithstanding a valid waiver of the physician-patient privilege. In the present case, the custodian hospital failed to establish any detriment to the patient, third parties or itself warranting issuance of a protective order. Thus, there was no basis for the exercise of the court's discretion to grant a protective order. Full disclosure was properly ordered upon a finding that the records were material and relevant to the issues of the litigation and that plaintiff had waived the privilege of confidentiality.

In the summer of 1977, plaintiff was undergoing treatment at New Rochelle Hospital. During that stay she jumped from a hospital window in an alleged suicide attempt. About a year after leaving New Rochelle Hospital, plaintiff was voluntarily admitted to New York Hospital for alcohol detoxification and rehabilitation. She received psychiatric treatment there and was discharged, as improved, in September, 1978.

In July, 1979, plaintiff instituted the present malpractice action against New Rochelle Hospital and three physicians for injuries sustained when she jumped from the hospital window. Plaintiff alleged that defendants were negligent "in failing to take proper precautions with a suicidal patient; in failing to recognize and treat a psychiatric emergency; * * * [and in] failing to treat [an] underlying psychiatric condition." She also claimed aggravation of prior conditions, including psychological problems.

In response to requests for discovery, plaintiff authorized the release of all her hospital and medical records, including those of New York Hospital, as specified in CPLR 3121 (subd. [a] ). Upon receiving defendants' request and plaintiff's authorization, however, New York Hospital refused to release the records directly to plaintiff or anyone other than a "qualified medical doctor."

Two of the defendant doctors, relying on CPLR 3101, 3102 (subd. [c] ), 3121 (subd. [a] ), and section 33.13 of the Mental Hygiene Law, moved against New York Hospital for an order compelling disclosure of the psychiatric records on the ground that plaintiff had put both her physical and mental conditions in issue and, therefore, they were entitled to the records to prepare their defense against the claim of aggravation of a pre-existing mental condition. Plaintiff joined in defendants' request. In opposing the motion, New York Hospital argued that it had an interest in maintaining the confidentiality of the records which existed notwithstanding plaintiff's waiver of the privilege. It requested Special Term to examine the records to determine which portions, if any, were material and relevant to the issues in plaintiff's suit; to supervise any disclosure; and to restrict access to counsel only. The court appointed a referee, who prohibited any discovery because the records contained such extensive "confidential and sensitive material, totally irrelevant to the issues in this action," that redaction of those portions would make the remaining portions "of no consequence." Special Term confirmed the referee's finding.

The Appellate Division, 86 A.D.2d 256, 449 N.Y.S.2d 755, disagreed and ordered the records disclosed in their entirety. The court reasoned that plaintiff had expressly waived her privilege and should bear the ultimate responsibility for embarrassment resulting from disclosure. The court also found that the records were clearly material and relevant to the issue of aggravation of plaintiff's mental condition as well as being necessary for both prosecuting and defending the action. Under these circumstances, it was concluded that New York Hospital, a nonparty, should not be allowed to frustrate the parties' attempt to gain access to the plaintiff's records. The Appellate Division granted leave to appeal on a certified question. This court now affirms.

It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR (see CPLR 3121, subd. [a] ) when that party has waived the physician-patient privilege ¹ by affirmatively putting his or her physical or mental condition in issue (Prink v. Rockefeller Center, 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517; Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857). In most of the reported cases where the right to disclosure was granted, however, the controversy centered on whether the party had waived the physician-patient privilege (see CPLR 4504) by placing his or her physical or mental condition in issue or on whether the records sought to be discovered were "material and necessary in the prosecution or defense of an action" (CPLR 3101; see, e.g., Daniele v. Long Is. Jewish-Hillside Med. Center, 74 A.D.2d 814, 425 N.Y.S.2d 363; Brooks v. Hausauer, 51 A.D.2d 660, 379 N.Y.S.2d 306; Mancinelli v. Texas Eastern Transmission Corp., 34 A.D.2d 535, 308 N.Y.S.2d 882). Patients also have been granted access to their records that were held by an opposing party, for purposes of litigation concerning the medical treatment rendered by that party (see Matter of Warrington [State of New York ], 303 N.Y. 129, 100 N.E. 170; Matter of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455).

This appeal presents a novel issue: when a patient, who is a party to a malpractice action, has waived the privilege of confidentiality, may a nonparty custodian of the medical records sought to be disclosed apply for a protective order prohibiting unconditional disclosure of those records?

New York Hospital's opposition to the defendants' motion and its request that the court examine the records itself to determine which portions were material and relevant will be treated as requesting a protective order pursuant to CPLR 3103. ² Such orders are discretionary and may be made at any time on the court's own initiative or on the motion of any party or witness in order to deny, limit, condition or regulate the use of any disclosure device (CPLR 3103). A protective order is designed to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103, subd. [a] ). In support of its position, New York Hospital argues that psychiatric records must be accorded greater confidentiality than other types of medical records because of the highly sensitive nature of mental illness and treatment. The hospital warns that direct and unsupervised disclosure of psychiatric records may cause harm to the patient. Upon being confronted with the intimate information he or she has revealed or with doctors' diagnoses and prognoses, it is contended that the patient may suffer a relapse. Moreover, it is argued that the technical medical terminology and shorthand used in the record may cause confusion or misunderstanding. Further, the patient's relationships with other persons (such as family and friends) may also be harmed by revealing and disseminating the information in the record concerning them. These factors, it is argued, imbue the psychiatric record with an inherent confidentiality. For this reason, the hospital urges that the custodian or a court should have the discretion to withhold such records requested in the course of discovery even if the patient has waived the privilege of confidentiality. Moreover, the hospital contends that if disclosure is ordered, it should be made with adequate protective measures to ensure that only relevant material will be disclosed.

Defendants do not dispute that psychiatric records are particularly confidential in nature or that the hospital has the right to object to full disclosure on this basis. Rather, they assert that unconditional disclosure of the records was proper in this case because all parties to this litigation wished to examine the requested records that the court below found to be relevant. Defendants add that the nonparty hospital failed to prove that any of the alleged dangers existed as to plaintiff. Finally, defendants note that the Appellate Division did follow the hospital's suggested procedural safeguards by examining the record in camera before ordering full disclosure.

In order to evaluate defendants' motion to compel full discovery and the hospital's request to limit the scope of disclosure, the merits of the hospital's assertion of its right to object must be addressed. The nature of medical records of a patient's treatment must be examined in order to determine whether objections by a treating physician or hospital should be allowed to limit discovery when the patient has waived the privilege of confidentiality. Medical records will generally contain laboratory reports, nurses' notes, consultations, and a wide range of speculation and observation that led to the diagnosis and prognosis, which " '[i]f not properly explained * * * could be exceedingly disturbing to a patient already apprehensive' " (Gotkin v. Miller, 379 F.Supp. 859, 866 [E.D.N.Y.], affd. ...