Cynthia B. v. New Rochelle Hospital Medical Center

• Decision Date: 03 May 1982
• Citation: 449 N.Y.S.2d 755,86 A.D.2d 256
• Parties: CYNTHIA B., (Anonymous), et al., Plaintiffs-Respondents, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER, et al., Defendants; Mary M. Curtis et al., Appellants. New York Hospital, nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

Page 755

449 N.Y.S.2d 755

86 A.D.2d 256

CYNTHIA B., (Anonymous), et al., Plaintiffs-Respondents, v. NEW ROCHELLE HOSPITAL MEDICAL CENTER, et al., Defendants;

Mary M. Curtis et al., Appellants.

New York Hospital, nonparty-respondent.

Supreme Court, Appellate Division,

Second Department.

May 3, 1982.

DeVito & Eberz, White Plains, (John J. Pilkington, White Plains, of counsel), for appellants Mary Curtis and Richard Cea.

Fuchsberg & Fuchsberg, New York City (Norman E. Frowley, New York City, of counsel), for plaintiffs-respondents.

Kelly, Drye & Warren, New York City (Susan H. Rockford, Richard J. Concannon and Robert A. Horowitz, New York City, of counsel), for nonparty-respondent New York Hospital.

Before GIBBONS, J. P., and WEINSTEIN, BRACKEN and BOYERS, JJ.

GIBBONS, Justice Presiding.

The appeals present for resolution the somewhat unusual question of whether, in a medical malpractice action in which the plaintiff alleges that the defendant had aggravated a pre-existing mental disorder, a nonparty private hospital may, despite plaintiff's authorization and waiver of her physician-patient privilege, properly resist the release of her psychiatric hospital records for discovery and inspection.

This action against the New Rochelle Hospital Medical Center and three physicians was commenced in or about July of 1979 by the plaintiff, Cynthia B., and her husband, Stephen B., who seeks reimbursement of medical expenses and damages for loss of consortium.

Cynthia B. (plaintiff) was hospitalized in defendant New Rochelle Hospital Medical Center for a period of time between July and September, 1977. At some point during this interval, plaintiff sustained physical injuries, particularly several fractures, when she allegedly attempted suicide by jumping from a window of the hospital.

From August until September of the following year, 1978, plaintiff was confined at the New York Hospital--Cornell Medical Center, Westchester Division. This was a voluntary admission for alcohol detoxification and rehabilitation; plaintiff received psychiatric treatment and was discharged on September 29, 1978 as improved.

In amplification of their allegations of malpractice, plaintiffs, in their bills of particulars, claim, inter alia, that the defendants were negligent "in failing to take proper precautions with a suicidal patient; in failing to recognize and treat a pyschiatric emergency; in improperly treating a psychiatric emergency; failing to treat underlying psychiatric condition".

In September of 1979, defendant New Rochelle Hospital Medical Center demanded that plaintiffs execute authorizations for the release of hospital and medical records. In June of 1980, defendants Curtis and Cea sought similar authorizations, "including but not limited to Nassau County Medical Center and the New York Hospital." Such authorization, with respect to the New York Hospital records here at issue, was, in fact, given by Cynthia B. on June 28, 1980. However, a demand for these records was refused by the New York Hospital despite plaintiff's authorization. In a letter dated September 24, 1980, the attorney for the New York Hospital stated: "It is the policy of the Hospital not to permit the disclosure of psychiatric records even upon the authorization of patients or former patients."

Thereafter, by notice of motion dated November 10, 1980, defendants Curtis and Cea moved to compel disclosure of the New York Hospital psychiatric records of plaintiff Cynthia B. pursuant to CPLR 3101, 3102 (subd. ), and 3121 (subd. ), and section 33.13 of the Mental Hygiene Law. These defendants alleged that the records were properly discoverable as plaintiffs had put Cynthia's mental condition in issue by their claims that a pre-existing mental infirmity had been aggravated by the malpractice. Codefendants New Rochelle Hospital Medical Center and McBaine cross-moved for similar relief and plaintiffs also sought to be supplied with the records which they themselves had not seen.

New York Hospital submitted a physician's affirmation in opposition to defendants' motions, detailing its policy for denial of access to such records. The physician asserted that the release of such sensitive psychiatric material would tend to undermine the therapeutic atmosphere of confidentiality essential to effective therapy, and could have serious detrimental effects upon plaintiff's mental health and well-being. Relying on Gotkin v. Miller, 379 F.Supp. 859 affd. 514 F.2d 125 which construed former section 15.13 of the Mental Hygiene Law (the predecessor of present § 33.13), New York Hospital contended that, under its holding, a patient does not have an absolute right to direct access to the hospital records of his own psychiatric treatment and that the fact that plaintiff may have waived the physician-patient privilege with respect to such records does not alone justify ordering the New York Hospital to disclose the records to anyone she designates. New York Hospital requested that disclosure be made, if at all, with "adequate safeguards" to protect against the dangers cited. An attorney's affirmation submitted on behalf of New York Hospital also requested that the court or a psychiatrist supervise the disclosure, if any. The attorneys for plaintiffs then submitted an affirmation in which they again requested production of the records, but stated that they had no objection to the supervised disclosure suggested by the hospital.

In response to defendants' motion and cross motion, the court, in an order dated January 20, 1981, appointed MORTON B. SILBERMAN as Referee, directed New York Hospital to turn over its records to him, and directed the Referee to review the records and turn over to the attorneys for all parties whatever portions he deemed necessary and appropriate.

By a decision dated February 3, 1981, the Referee determined that "the psychiatric treatment rendered * * * plaintiff in August and September 1978 has the barest minimal relevance to the issues of the underlying action. The minimal relevance is far outweighed by the prejudice that could result to the...