Estate of Finkle

• Decision Date: 13 May 1977
• Parties: ESTATE of Theodore H. FINKLE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 343

395 N.Y.S.2d 343

90 Misc.2d 550

ESTATE of Theodore H. FINKLE.

Surrogate's Court, New York County.

May 13, 1977.

Aranow, Brodsky, Bohlinger, Benetar & Einhorn, New York City, Gerald I. Carp, New York City, of counsel, for petitioner.

Bower & Gardner, New York City, for respondent.

MILLARD L. MIDONICK, Surrogate.

The preliminary executor (an attorney) has brought a discovery proceeding pursuant to SCPA 2103 seeking (1) the turnover of certain records and documents of the decedent, a psychiatrist, which are in the possession of the respondent, who is also a psychiatrist, and (2) the examination of the respondent-psychiatrist with respect to the delivery of such records and documents. The petition of the preliminary executor also alleges that the respondent's refusal to deliver such records as well as his misappropriation of patients of the decedent following the decedent's death has deprived the estate of a valuable asset and caused the estate monetary loss for which the respondent should be required to compensate the estate. The respondent has moved (1) to dismiss the petition on the ground that pursuant to CPLR § 3211(a)(7), the petition fails to state a cause of action, or (2) in the alternate for an order directing that the patients be made parties to the proceeding.

In an application to dismiss a petition for failure to state a cause of action, the petitioner's allegations are presumed to be true. (Williams v. Williams, 23 N.Y.2d 592, 595-596, 298 N.Y.S.2d 473, 246 N.E.2d 333).

The petition alleges that shortly after the decedent's death, the preliminary executor learned that the keys to the decedent's office wherein he kept his medical records were entrusted to the respondent, a practicing psychiatrist. With the knowledge of the preliminary executor, respondent was permitted to notify the patients of decedent's death and to administer prompt medical attention, so as to preserve the practice. Respondent was instructed, however, that nothing was to be removed from the office and that petitioner intended to "sell" the practice. Upon recovering the keys to the office from respondent, petitioner discovered that a number of decedent's files were missing. Petitioner demanded that the respondent return the decedent's medical records to the estate and respondent has failed to do so. The petition further states that continued delay in the delivery of such books and records to a prospective purchaser of the decedent's psychiatric practice will adversely affect the monetary value of the practice. It is further alleged that the respondent has already begun treating some of the patients of the decedent and that the estate is thus being deprived of a valuable asset. The respondent has produced authorizations signed by the decedent's private (non-medicaid) patients and continues to keep control over the records of such patients. The preliminary executor alleges that the estate is unable to "sell" the decedent's practice without these private patients and their files and has thus sustained a loss. In addition, the petitioner claimed that the files, as well as the names and addresses of the patients, are needed by the estate for the purpose of determining the decedent's income and ascertaining whether any debts are owed to the estate by the patients. At the argument of the motion, the court directed the respondent to turn over to the preliminary executor the names and addresses and billing information relating to these patients, and he has done so. The issues to be resolved in connection with the motion to dismiss the petition are thus, (1) whether the estate is entitled to possession of the decedent's medical records, and (2) whether the executor can examine the respondent with respect to his alleged misappropriation of a part of the decedent's practice.

The law in New York State is clear "that records taken by a doctor in examination and treatment of a patient become property belonging to the doctor." (Matter of Culbertson, 57 Misc.2d 391, 392-393, 292 N.Y.S.2d 806, 807). That case involved a direction by a deceased doctor in his last will and testament for the destruction of his records upon his death. The court declared such a paragraph to be void. The patients in that case, nevertheless, were not permitted to have their records turned over to them. Basically, the court found that while the estate was required to retain possession of the actual records it must allow copies to be given to authorized persons. Similarly, a Federal District Court has noted that New York as well as the vast majority of states hold "that medical records are the property of the physician or the hospital and not the property of the patient." (Gotkin v. Miller, 379 F.Supp. 859, 866-867 (E.D.N.Y.1974), aff'd. 514 F.2d 125 (2d Cir. 1975)). Likewise, courts in other jurisdictions have held that medical records, such as X-rays, optometrist files, and mental hospital records, are the property of the doctor or hospital. (E. g. McGarry v. J. A. Mercier Co., 272 Mich. 501, 262 N.W. 296; cf. Corliss v. E. W. Walker Co., 64 F. 280 (Cir.Ct.Mass.1894); Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 75 A.2d 867; Cannell v. Medical and Surgical Clinic, S.C., 21 Ill.App.3d 383, 315 N.E.2d 278 (App.Ct.Ill.1974); Wolfe v. Beal, 23 Pa.Cmwlth. 475, 353 A.2d 481 (Pa.Commer.1976)). It is interesting to note that the multitude of the cases in this area have involved whether or not individuals or their authorized agents could inspect the records. (Bush v. Kallen, 123 N.J.Super. 175, 302 A.2d 142; Shikara v. Commr. of Mental Health, 352 Mass. 779, 227 N.E.2d 477, cert. den. 389 U.S. 899, 88 S.Ct. 227, 19 L.Ed. 223; Bane v. Supt. of Boston State Hospital, 350 Mass. 637, 216 N.E.2d 111, cert. den. 385 U.S. 842, 87 S.Ct. 96, 17 L.Ed.2d 75; Gaertner v. State, 385 Mich. 49, 187 N.W.2d 429; see also Covington v. Harris, 136 U.S.App.D.C. 35, 419 F.2d 617 (1969); Fanshaw v. Medical Protective Assn. of Ft. Wayne, Ind., 52 Misc.2d 234, 190 N.W.2d 155; CPLR 4505; 1 Lawyers Medical Cyclopedia, § 3.21). Each of the cited cases was decided on its particular facts; nevertheless, the courts which allowed the records to be inspected by the patients did not permit possession of the documents themselves by the patients.

As evidenced by the above law, it is clear that respondent, even if authorized by the patients, is not entitled to possessio of decedent's records of those patients. neither are the patients themselves entitled to their records. This does not mean that the actual records cannot be turned over if the estate so chooses, subject to the patient's right to confidentiality. If the estate does not wish to turn them over, it has the right to retain them. Therefore, respondent must return to the preliminary executor the original records of the eight former patients of decedent in question. Either before that time or thereafter he is entitled to a copy of those records based upon each patient's authorization. The preliminary executor at all times has been willing so to provide respondent with a copy of those records. However, the estate is not obligated to bear the expense of copying.

With respect to that...