Glazer v. Department of Hospitals of City of New York

• Decision Date: 16 February 1956
• Citation: 2 Misc.2d 207,155 N.Y.S.2d 414
• Parties: Application of Frieda GLAZER, Petitioner, for an Order pursuant to Article 78 of the Civil Practice Act, v. The DEPARTMENT OF HOSPITALS OF the CITY OF NEW YORK and The City of New York, Respondents.
• Court: New York Supreme Court

Page 414

155 N.Y.S.2d 414

2 Misc.2d 207

Application of Frieda GLAZER, Petitioner, for an Order

pursuant to Article 78 of the Civil Practice Act, v. The DEPARTMENT OF HOSPITALS OF the CITY OF NEW YORK and The

City of New York, Respondents.

Supreme Court, Special Term, Kings County, Part I.

Feb. 16, 1956.

Murray Blumenfeld, New York City, for petitioner.

Peter Campbell Brown, Corp. Counsel, New York City, by Milton Weinberg, New York City, of counsel, for respondents.

FRIEDMAN, Justice.

Petitioner applies, by way of an article 78 proceeding, for an order directing the respondent, the Department of Hospitals of the City of New York, to furnish petitioner with a copy of her (petitioner's) hospital records. These records show the diagnosis, treatment and other information pertinent to injuries which petitioner claims she sustained as the result of an accident, and for which injuries she was confined to the Kings County Hospital, a branch of the respondent, and for which injuries she has brought suit in this court against another party on the ground of negligence.

The refusal by the respondent to furnish said petitioner with information regarding said records, or an inspection thereof, was predicated upon the said petitioner's refusal to sign a printed assignment form, a copy of which is attached to the papers before the court. This form was prepared by respondent or its representatives, and in addition to providing therein for an assignment from the proceeds of the said petitioner's negligence action to the respondent herein, it also made provision that an additional assignment be made from the proceeds of the same cause of action to certain physicians (unnamed) on the medical visiting staff of the said hospital. This assignment is allegedly to pay said physicians their charges for treating the petitioner while she was in the hospital. The form itself makes no statement as to the amount of such charges, or the rate at which the charges will be billed, but merely provides that such amount shall 'not exceed twice the rates set forth in the medical fee schedule established by the Workmen's Compensation Board and that such medical and surgical services were rendered by such physician or under his personal supervision or direction.'

Petitioner alleges to this court that she is willing to sign an authorization and the assignment in behalf of the hospital, for its hospital charges, but objects to the inclusion in said assignment of the additional assignment to said unnamed physician or physicians. She points out that in any event, the respondent has a lien for its charges by virtue of the provisions of section 189 of the Lien Law, and that she is willing to recognize that lien, even though it be by way of assignment. She objects, however, to giving to the said physician or physicians a lien, by way of assignment, which they otherwise do not have under existing law.

Respondent, on the other hand, contends that it need not furnish information with respect to the records in question, unless and until petitioner complies with its request, and urges as authority for its said refusal, the provisions of section 585, subd. c of the New York City Charter. That section provides that members of the medical staff who serve on the in-service of a hospital as part-time clinicians, shall serve without compensation except that they may accept medical fees for services rendered by them to patients to persons who recover damages in tort actions.

Section 585, subd. c of the New York City Charter is merely permissive in nature. It does not give the respondent the authority to compel on assignment in behalf of such physicians, nor does it create any common law or statutory lien in their behalf. Viviani v. Howard Johnson's, Inc., Sup., 130 N.Y.S.2d 331; Reardon v. Spagna, 205 Misc. 196, 130 N.Y.S.2d 206, reversed on other grounds, 284 App.Div. 975, 134 N.Y.S.2d 843. Yet, as appears on the face of the assignment, petitioner dare not make any change therein because the printed form itself specifies in larger type than the body of the assignment, and prominently underlined, the words 'Alteration Of This Form Will Not Be Accepted.' Since the physicians have no lien under section 189 of the Lien Law, they stand in the same position as any other claimants to whom the petitioner may be indebted for services rendered and who would be required to resort to a plenary suit to enforce their claims, if any.

The Legislature of this state, in its wisdom, has given hospitals a lien upon the proceeds of a recovery in a tort action. Sec. 189, Lien Law. While an attempt has been made through the introduction of legislation in the Legislature to include physicians within the benefits of such law, this proposed legislation has failed of passage, and the Legislature has turned down the suggestion that physicians have such a lien. See 1949 N. Y. State Legislative Index, S.I., 2045, Pr. 2253, defeated March 29, 1949. It was in an attempt to bypass the Legislature's determination in that regard, that the printed form of assignment which was originally in existence was altered, so as to include within its scope that which the Legislature refused to enact into law. Somehow or somewhere, someone conceived the ingenious thought that physicians could be preferred over other creditors, by including the provision for an assignment to them, within the body of the hospital assignment itself.

This was a very powerful and potent weapon in behalf of the physician. The patient lying on his back in the hospital, or the patient who desperately needed the information contained in those records in order to proceed with his lawsuit, was faced with the choice of signing the printed form which could not be altered, or remaining ignorant as to the diagnosis and treatment of injuries which the hospital had made during the period of his confinement in said hospital. Without that information, the plaintiff could not secure his day in court. Rule 9 of the Rules of the Supreme Court in Kings County, and similar rules in other counties, require that a plaintiff furnish a defendant in a negligence action, with certain documents which show in detail the nature and extent of his injuries. These documents are also required to be filed in court. If the hospital remains adamant and refuses to furnish plaintiff with the information which he seeks, the plaintiff, almost at the very inception of his lawsuit, can never reach the calendar of the court and have his day in court. The hospital usually remains adamant. That appears to be what was done in this case, and that is the reason why this motion is now before the court.

It is elementary that an assignment should be a voluntary act upon the part of the assignor. If it is not, if it is made under duress or coercion, or if it is not given with full knowledge of its contents, it is void. Duress and coercion do not mean only that force or threats have been used. In a case such as this, duress and coercion may be spelled out of the refusal to furnish information, which may result in depriving a plaintiff of substantial moneys to which he may be legally entitled. The court has no right to substitute its judgment for that of the Legislature, and when the Legislature decreed, through its failure to act upon the legislation which was introduced, that a physician has no legal lien upon the proceeds of a recovery in a tort action, there the matter must end. It follows, therefore, that the refusal of the department of hospitals to furnish the information requested in the absence of the execution by the petitioner herein of an assignment to the physician, is unreasonable, unwarranted and arbitrary, and constitutes an improper abuse of discretion by this department.

While on this subject, the attention of the Bar should be called to the fact that the Legislature has heretofore very wisely provided a means and a method whereby information of this kind may be...