In the Matter of Antonia E.

• Decision Date: 29 May 2007
• Docket Number: No. D-6800/07,D-6800/07
• Citation: 838 N.Y.S.2d 872,16 Misc.3d 637,2007 NY Slip Op 27225
• Parties: In the Matter of ANTONIA E., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Family Court

16 Misc.3d 637

838 N.Y.S.2d 872

2007 NY Slip Op 27225

In the Matter of ANTONIA E., a Person Alleged to be a Juvenile Delinquent, Respondent.

No. D-6800/07

Family Court, Queens County.

May 29, 2007.

Michael A. Cardozo, Corporation Counsel, New York City (Elan Parra of counsel), for presentment agency.

Legal Aid Society, New York City (Tamara Steckler and Lisa E. Tuntigian of counsel), Law Guardian.

OPINION OF THE COURT

JOHN M. HUNT, J.

The presentment agency has moved for an order directing the issuance of a judicial subpoena duces tecum directing that the Jamaica Hospital Medical Center produce its records relating to the treatment of respondent's brother, Christopher E., for inspection in connection with this juvenile delinquency proceeding.

By petition filed on April 4, 2007, respondent, Antonia E., is alleged to have committed acts which, were she an adult, would constitute the crimes of assault in the second and third degrees, attempted assault in the second degree and criminal possession of a weapon in the fourth degree. The petition alleges that on April 3, 2007 the respondent assaulted her brother, Christopher E., with her hands and a screwdriver and attempted to hit him with a hammer, and that Christopher sustained physical injury as a result of the incident.

On April 3, 2007 Christopher provided a written narrative of the incident to Police Officer Michael Carleo of the 113th Precinct. The written statement of Christopher as well as the supporting deposition of Officer Carleo are appended to the petition. Following a hearing pursuant to Family Court Act § 307.4 on April 4, 2007 and respondent's initial appearance upon the petition on April 18, 2007, the case was adjourned for a fact-finding hearing on June 7, 2007. On May 4, 2007 the presentment agency filed this order to show cause seeking the issuance of a subpoena duces tecum directing Jamaica Hospital Medical Center to produce its records relating to its treatment of Christopher in relation to the incident alleged in the petition. In support of its application, the presentment agency alleges that production of the medical record from Jamaica Hospital relating to the treatment of the victim is required in order to allow the presentment agency to establish the commission of the charged crimes beyond a reasonable doubt, whether or not the victim is willing to cooperate further in the prosecution of this case involving alleged intrafamilial violence.

The Family Court is authorized to issue a subpoena duces tecum in a proper case to order the production of materials which are relevant to a pending judicial proceeding (Judiciary Law § 2-b [1]; Family Ct Act § 153; CPLR 2307; see, Matter of Terry D., 81 NY2d 1042, 1044 [1993]; Matter of Bernard C., 168 Misc 2d 813, 820 [1996]; Matter of Board of Educ. of City of N.Y. v Hankins, 294 AD2d 360 [2002], lv denied 99 NY2d 610 [2003]; People v Thurston, 209 AD2d 976, 977 [1994], lv denied 85 NY2d 915 [1995]; Matter of Constantine v Leto, 157 AD2d 376, 378 [1990], affd 77 NY2d 975 [1991]). However, in this case, because the presentment agency here seeks to compel the production of information which comes within the scope of the state's physician-patient privilege and which also constitutes "protected health information,"¹ as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 USC § 1320a—1320d-8), the court is unable to simply issue an order or a subpoena directing the production of a hospital record which appears to be relevant to the issues in this proceeding.

"The intent of HIPAA is to ensure the integrity and confidentiality of patients' [medical] information and to protect against unauthorized uses or disclosures of the information" (Northlake Med. Ctr., LLC v Queen, 280 Ga App 510, 511, 634 SE2d 486, 489 [2006] [internal quotation marks omitted]; see, Arons v Jutkowitz, 37 AD3d 94, 98 [2006]; Allen v Wright, 282 Ga 9, 11, 644 SE2d 814, 816 [2007]; Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 437 [2004]), and HIPAA and its regulations (the privacy rules) clearly supersede any contrary provisions of state law which are less stringent than HIPAA (45 CFR 160.203; Crenshaw v MONY Life Ins. Co., 318 F Supp 2d 1015, 1028 [SD Cal 2004]; Law v Zuckerman, 307 F Supp 2d 705, 708 [D Md 2004]; National Abortion Fedn. v Ashcroft, 2004 WL 292079, *3, 2004 US Dist LEXIS 1701, *8 [ND Ill 2004]; United States ex rel. Stewart v Louisiana Clinic, 2002 WL 31819130, *3, 2002 US Dist LEXIS 24062, *8 [ED La 2002]; Allen v Wright, 282 Ga at 12, 644 SE2d at 816; Findley v Findley, 937 So 2d 912, 916 [La Ct App 2006], writ denied 938 So 2d 88 [La Sup Ct 2006]).

45 CFR 164.512 (e) sets forth the standards for disclosure of protected health information pursuant to an order in judicial and administrative proceedings.², ³ The regulation reads as follows:

"(e) Standard: Disclosures for judicial and administrative proceedings.

"(1) Permitted Disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

"(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order."

HIPAA "clearly anticipates disclosures of protected health information pursuant to a court order" (Holmes v Nightingale, 158 P3d 1039, 1041 [Okla 2007]; e.g., Arons v Jutkowitz at 99; Northwestern Mem. Hosp. v Ashcroft, 362 F3d 923, 926 [7th Cir 2004]; Crenshaw v MONY Life Ins. Co. at 1028; Bayne v Provost at 237; Anderson v City of New York, 2006 WL 1134117, 2006 US Dist LEXIS 25805 [SD NY 2006]). In this proceeding, the presentment agency seeks court-ordered production of the Jamaica Hospital record relating to its postincident treatment of the alleged victim, which contains information which constitutes protected health information covered by HIPAA and which is also protected by New York's physician-patient privilege.

HIPAA's provisions (42 USC § 1320d-7 [a] [1]; 45 CFR 160.203) expressly preempt state law unless the state law relates to the privacy of individually identifiable health information and is more stringent than HIPAA's requirements (45 CFR 160.203 [b]; see, Law v Zuckerman at 708-709; South Carolina Med. Assn. v Thompson, 327 F3d 346, 349 [4th Cir 2003], cert denied 540 US 981 [2003]; United States ex rel. Stewart v Louisiana Clinic, 2002 WL 31819130, *3, 2002 US Dist LEXIS 24062, *8; Allen v Wright, 282 Ga at 12, 644 SE2d at 816; Northlake Med. Ctr., LLC v Queen, 280 Ga App at 511-512, 634 SE2d at 488-489; National Abortion Fedn. v Ashcroft, 2004 WL 292079, *2-3, 2004 US Dist LEXIS 1701, *7-8), and the regulations state that "a state law is `more stringent' than HIPAA if it `provides greater privacy protection for the individual who is the subject of the individually identifiable health information'" (South Carolina Med. Assn. v Thompson at 355, quoting 45 CFR 160.202).⁴

"To further clarify this standard, the regulation explains that a state law is more stringent where it meets one or more of the following criteria: the state law prohibits or restricts a use or a disclosure of information where HIPAA would allow it; the state law provides an individual with greater rights of access or amendment to his medical information than provided under HIPAA; the state law provides an individual with a greater amount of information about a use, a disclosure, rights, and remedies; the state law provides for the retention or reporting of more detailed information or for a longer duration; or the state law provides greater privacy protection for the individual who is the subject of the individually identifiable health information" (id. at 355, quoting 45 CFR 160.202 [internal quotation marks omitted]).

The relevant provision of New York law is the physician-patient privilege, which is codified at Civil Practice Law and Rules § 4504. Upon consideration of the physician-patient privilege and the broad provisions for court-ordered disclosure under HIPAA, this court finds that HIPAA provisions do not supersede New York law.⁵

New York's physician-patient privilege (CPLR 4504), is entirely a creation of statute, as there was no common-law privilege preventing the disclosure of communications between a doctor and a patient (Williams v Roosevelt Hosp., 66 NY2d 391, 395 [1985]; Dillenbeck v Hess, 73 NY2d 278, 283-284 [1989]; Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 529 [2002]).

"The modern codification of the privilege . . . serves three core policy objectives . . . [f]irst, the physician-patient privilege seeks to maximize unfettered patient communication with medical professionals, so that any potential embarrassment arising from public disclosure will not deter people from seeking medical help and . . . treatment . . . [s]econd, the privilege encourages medical professionals to be candid in recording confidential information in patient medical records, and thereby averts a choice between their legal duty to testify and their professional obligation to honor their patients' confidences . . . [t]hird, the privilege protects patients' reasonable privacy expectations against disclosure of sensitive personal information" (Matter of Grand Jury Investigation at 529 [internal quotation marks and citations omitted]; see, Williams v Roosevelt Hosp. at 395; Dillenbeck v Hess at 285).

Civil Practice Law and Rules § 4504 (a) provides that "[u]nless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which [s]he acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity," and courts have afforded the physician-patient privilege "a broad and liberal construction to carry out its policy" (People v Sinski, 88 NY2d 487, 492 [1996]; see, Matter of Marie H., 25 AD3d 704, 709 [...