Maillaro v. New York Presbyterian Hosp.

• Decision Date: 12 October 2011
• Docket Number: Civil Action No.: 10-3474 (FLW)
• Court: U.S. District Court — District of New Jersey
• Parties: JAMES MAILLARO, et al., Plaintiffs, v. NEW YORK PRESBYTERIAN HOSPITAL, et al., Defendants.

JAMES MAILLARO, et al., Plaintiffs,

v.NEW YORK PRESBYTERIAN HOSPITAL, et al., Defendants.

Civil Action No.: 10-3474 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date: October 12, 2011

ORDER

This matter having come before the Court on the informal application of Plaintiffs James Maillaro ("Mr. Maillaro") and Joanne Maillaro (collectively, "Plaintiffs"), by letters to the Court dated September 1, September 15, and September 28, 2011, to compel the production of certain medical records related to a patient ("Patient 2") with whom Mr. Maillaro shared a hospital room on July 10, 2008; and Defendants New York Presbyterian Hospital ("NYPH") and Michael Kaiser (collectively, "Defendants"), by letters to the Court dated August 22 and September 28, 2011, having objected to production; and Defendants contending that Plaintiffs' request for production is "not...limited with respect to either time...or scope" and is therefore a "fishing expedition" based on Mr. Maillaro's assertion that he "believe[s] that [he] was exposed to an infectious process which was not prevented by...[NYPH] by placing [him] in a room with a patient who had medical conditions which caused...[his] surgical site to become infected" (Def.'s Letter dated August 22, 2011 at 1); and Defendants maintaining that because Mr. Maillaro's "medical records reflect that the organism ultimately identified through culture done July 25, 2008 was Staphylococcus aureus ("Staph")", the "only potentially relevant information in the other patient's records would be some indication that he suffered from a Staph infection as well" and "[t]hose portions of the records that might possibly reflect such information have already been summarized for Plaintiffs" (Id. at 2); and Defendants noting that "Staph bacteria is found everywhere" and "[i]mmuno-compromised individuals, such aspost-surgical patients, are more susceptible to infection" such that, even accepting Plaintiffs' argument "that the likelihood of acquiring a Staph infection might increase with the sharing of a room with a patient who was incontinent of urine and/or stool", this "does not warrant the disclosure of a non-party's entire medical record" because "Staph is an infection acquired by contact" (Id.); and Defendants arguing that "Plaintiffs have not directly or through counsel made any claim that would logically implicate a need to review the entire medical record for Mr. Maillaro's roommate" given that "Mr. Maillaro hired his own private duty nurse to care for him during...[the] time...when he shared a room with the patient in question" and given "increasingly protected privacy right[s]" (Id.); and Defendants, citing FED. R. EVID. 501, maintain that because Plaintiffs have "asserted claims of medical malpractice to which [New York] State substantive law applies", the "discoverability of the medical records" at issue should be "determined according to New York State law" (Id.); and Defendants, citing Civil Practice Law and Rules ("CPLR") § 4504, Williams v. Roosevelt Hospital, 66 N.Y.2d 391, 395 (1985), Dillenbeck v. Hess, 72 N.Y.2d 278, 283-85 (1989), and In re Grand Jury Investigation, New York County, 98 N.Y.2d 525, 529 (2002), argue that "New York's physician-patient privilege...is entirely a creation of statute" and "serves...[the] policy objectives...[of] maximiz[ing] 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", "encourag[ing] medical professionals to be candid in recording confidential information in patient medical records...and thereby avert[ing] a choice between their legal duty to testify and their professional obligation to honor their patients' confidences", and "protect[ing] patients' reasonable privacy expectations against disclosure of sensitive personal information" (Id. at 3); and Defendants, citing CPLR § 4504(a), People v. Sinski, 88 N.Y.2d 487, 492 (1996), and Dillenbeck, 73 N.Y.2d at 284, contend that "unless the patient waives the privilege[,] a person authorized topractice medicine shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity...and which was necessary to enable him to act in that capacity" and that this "privilege applies not only to information communicated orally by the patient, but also to information obtained from observations of the patient's appearance and symptoms...unless the facts observed would be obvious to laymen" (Id.); and Defendants, citing In re Grand Jury, 98 N.Y. 2d at 532, contend that "a hospital may assert the privilege to maintain the confidentiality of patient medical records because...patients should not fear that merely by obtaining emergency medical care they may lose the confidentiality of their medical records and their physicians' medical determinations" because to "interpret the rule differently would discourage critical emergency care, intrude on patients' confidential medical relationships and undermine patients' reasonable expectations of privacy" and, further, the same principle is "equally applicable to disclosure of any medical records" (Id. at 3-4); and Defendants, citing Dillenbeck, 73 N.Y.2d at 278, and Herbst v. Bruhn, 483 N.Y.2d 363 (2nd Dept. 1984), note that "[a]n individual will only have been deemed to waive the physician-patient privilege when, in bringing or defending a person[al] injury action, the patient has affirmatively placed his or her physical condition in issue" and "even if waiver is shown, it is incumbent upon the party seeking disclosure to demonstrate that the discovery sought will result in the disclosure of relevant evidence reasonably calculated to lead to the discovery of information bearing upon the prosecution of the matter" (Id. at 4); and Defendants, citing New York City Health and Hospitals Corp. v. New York State Com'n of Correction, 906 N.Y.S.2d 42 (2010), note that "[t]here is no general public interest exception to the privilege" such that here, where the "patient whose records are the subject of Plaintiffs' request for disclosure is not a party to this case", that patient "cannot be deemed to have waived the physician-patient privilege" and there "is no exception...contained in any statute that is applicable to the instant...records" (Id.); and Defendants,citing 45 C.F.R. 160.103, Coffle v. City of Chicago, 2006 U.S. Dist. LEXIS 22061, at *14-15 (N.D. 111. 2006), and Bayne v. Provost, 359 F. Supp. 2d 234, 236 (N.D.N.Y. 2005), maintain that "[t]he information sought by Plaintiffs also constitutes protected health information as defined by the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. §§ 1320a-1320d-8" (Id. at 4-5); and Defendants, citing Northlake Medical Center, LLC v. Queen, 280 Ga.App. 510, 511 (2006), Arons v. Jutkowitz, 825 N.Y.S.2d 738 (2006), Gunn v. Sound Shore Medical Center, 772 N.Y.S2d 714 (2004), National Abortion Federation v. Ashcroft, 2004 WL 292079, at *3 (N.D. Ill.), Northwestern Memorial Hospital v. Ashcroft, 262 F.3d 923, 926 (7th Cir. 2004), Anderson v. City of New York, 2006 WL 1134117 (S.D.N.Y.), and 45 C.F.R. 164.512(e), contend that "[t]he 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", that "HIPAA and its regulations...superseded any contrary provisions of state law which are less stringent than HIPAA", and that "HIPAA anticipates disclosures of protected health information pursuant to a court order" (Id.); and Defendants, citing 42 U.S.C. 1320d-7(a)(1), 45 C.F.R. 160.203(b), 45 C.F.R. 160.202, and South Carolina Medical Association v. Thompson, 327 F.2d 346, 349 (4th Cir. 2003), cert. denied, 540 U.S. 981 (2003), 45 C.F.R. 160.202, argue that "HIPAA's provisions...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" and 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" (Id.); and Defendants arguing that "New York's statutory physician-patient privilege is more stringent than the HIPAA provisions and is not, therefore, superseded or preempted by HIPAA" such that the application of "New York's physician-patient privilege to this matter mandates the denial of Plaintiffs' petition for an order compelling the production of the non-party patient's medical records" (Id.); and in opposition, Plaintiffs contending that their request for the production of records is not "a fishing expedition" because they have "specific information regarding the roommate which confirms that the patient was indeed a potential source of infectious agents which may have caused or contributed to...[Mr. Maillaro's] condition" and which forms the "basis of the within lawsuit" (Pl.'s Opp'n Letter dated September 1, 2011 at 1-2); and Plaintiffs maintaining that they are "entitled to a full disclosure of all pertinent and relevant aspects of the patient's chart" in order to "establish that this particular patient was the source of [Mr. Maillaro's] infection" by providing the information "to an infectious disease expert for full review and analysis" as the information "goes to the very heart of Plaintiffs' claim against NYPH for negligence in exposing [Mr. Maillaro] to the potential source of the infection", the "information is not available from any other source", and an appropriate analysis "can only be accomplished through expert review" (Id. at 2); and Plaintiffs, citing 42 U.S.C. 1320d-7(a)(1), 45 C.F.R. 160.201 and noting Defendants' argument "that HiPAA preempts state law unless the state law relates to the privacy of the individual's identifiable health information and is more...