Randi A. J. v. Long Is.

• Decision Date: 25 September 2007
• Docket Number: 2005-04976.
• Citation: 2007 NY Slip Op 06953,46 A.D.3d 74,842 N.Y.S.2d 558
• Parties: RANDI A.J., Respondent, v. LONG ISLAND SURGI-CENTER, Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 74

842 N.Y.S.2d 558

2007 NY Slip Op 06953

RANDI A.J., Respondent, v. LONG ISLAND SURGI-CENTER, Appellant.

2005-04976.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 25, 2007.

Murphy & Higgins LLP (Mauro Goldberg & Lilling LLP, Great Neck [Barbara D. Goldberg and Richard J. Montes of counsel]), for appellant.

Law Offices of John J. Guadagno, P.C., East Islip (Steinberg & Boyle, LLP [Robert G. Steinberg of counsel]), for respondent.

OPINION OF THE COURT

FISHER, J.

It is now part of the declared public policy of the State of New York to protect every individual's right to keep medical treatment private and personal and medical records confidential (see Public Health Law § 2803-c [1], [3] [f]). As a result, when a state-licensed entity breaches that right—and especially when it does so in connection with a particularly sensitive medical procedure—more may be involved than simply a private wrong.

In the case now before us, a 20-year-old unmarried woman who lived with her parents decided to terminate her pregnancy at the defendant, Long Island Surgi-Center (hereinafter the Center). Because her parents strongly disapproved of premarital sex and were implacably opposed to abortion, she was determined to keep her decision from them. Consequently, when she first contacted the clinic to arrange for the procedure, she provided her cell phone number and gave specific instructions never to call her at home. Nevertheless, a day after the abortion one of the clinic's nurses telephoned the young woman's home and spoke with a person she knew to be her mother. In the course of the conversation, the nurse revealed information sufficient to allow the mother to conclude that her daughter had had an abortion.

The core question presented on this appeal is whether, in the young woman's subsequent action to recover damages, inter alia, for wrongful disclosure of confidential medical information, it was error for the trial court to submit the issue of punitive damages to the jury. We hold that, under the circumstances of this case, it was not.

I

According to the evidence presented at trial, on October 14, 1999, the plaintiff underwent an abortion at the Center. Upon first contacting the Center the day before, she specifically instructed a member of its staff that her home phone number was not to be used and that all calls to her were to be made to her cell phone number, which she provided. The plaintiff lived with her parents who were practicing Roman Catholics, strongly opposed to both premarital sex and abortion, and she did not want them to know about the procedure.

On the plaintiff's preoperative history and patient questionnaire form, which was filled out on October 13, 1999, the plaintiff's home phone number had been handwritten, then crossed out. The form also listed the plaintiff's cell phone number, as well as her work number. The nurse who filled out the form did not know why the plaintiff's home phone number had later been crossed out, although she conceded that one possibility was that the plaintiff did not want to be contacted there.

The Center's administrator testified that, whenever a patient did not wish to be called at a certain number, the proper practice was for the nurse or admitting clerk to cross it out and write "[n]ot to be called or don't call." Another nurse, however, testified that the practice was simply to write "do not call, patient's requesting" or not to write the number down at all. Two other nurses testified that the practice was to write the number down, without crossing it out, preceded by the notation "do not call at" or "do not call this number." It is undisputed that the Center had no special form to record a patient's instructions regarding confidentiality and privacy, nor did it have any written plan to protect patient confidentiality. In fact, the Center's only written "Confidentiality Policy" consisted of a statement that "all medical information that relates to and identifies specific individual patients and practitioners is strictly confidential," that "all employees ... are advised of their responsibility to maintain the confientiality [sic] of all patient information," and that "any breach of confidentiality by an employee may be subject to [sic] termination."

Moreover, it is undisputed that, upon the plaintiff's admission to the Center, administrative personnel used her insurance information to generate preprinted labels that were then prominently affixed to nearly every page of her medical record. The only contact information listed on the labels was the plaintiff's home telephone number, with no mention of the plaintiff's request not to be called there.

In accordance with the Center's procedures, upon the plaintiff's admission to the Center, she read and signed a form listing her rights as a patient. Among them was the right to privacy and confidentiality of her medical information and records. It is undisputed that the plaintiff never waived that right, and never authorized anyone at the Center to discuss her treatment with anyone else.

The plaintiff underwent the abortion without complication and was discharged the same day. Ordinarily, consistent with the requirements of the State Hospital Code (see 10 NYCRR 756.3 [e]), a determination of the plaintiff's blood group and Rh type would be made prior to the procedure, as the results would determine whether she needed an injection of Rh immune globulin within 72 hours of the procedure. However, part of the plaintiff's blood test results was still pending on the day of the abortion, and therefore, upon her discharge, she was told to follow up with her admitting physician as soon as possible to obtain her missing blood test results. As instructed, the plaintiff called the admitting physician the next morning and was told that her blood test results were in and that she would not require the injection. The Center apparently received a faxed copy of the plaintiff's blood test results from her physician at approximately 8:42 that morning, but the information was not entered in the plaintiff's chart.

Later that afternoon, evidently unaware that the blood test results had been received, a nurse at the Center followed her supervisor's instructions to check on whether the plaintiff had obtained her missing blood work "because that was something that was of concern." Using the only telephone number appearing on the preprinted label affixed to the top right corner of the Center's telephone follow-up form, the nurse called the plaintiff's home. The plaintiff's mother answered and, although the nurse testified that she was well aware that she was speaking not with the plaintiff but with her mother, she nevertheless had a conversation with the mother about the plaintiff. Without explicitly mentioning that the plaintiff had undergone an abortion, the nurse asked the mother, among other things, whether the plaintiff had experienced any vaginal bleeding, and told her that the plaintiff needed to find out her blood group and Rh type. Based upon her conversation with the nurse, the mother concluded that the plaintiff had had an abortion.

The plaintiff immediately complained to the Center regarding the breach of confidentiality. An investigation was subsequently conducted by the New York State Department of Health's Office of Health Systems Management, which determined, inter alia, that the nurse who had called the plaintiff's mother had revealed privileged information without the plaintiff's permission, and that the Center had subsequently failed to respond to the plaintiff's verbal and written complaints. Nevertheless, the nurse in question retained her position with the Center, and her supervisor—who had participated in the Department of Health's investigation—was apparently unaware that the Department had found that the nurse's conduct amounted to a breach of patient confidentiality.

When the plaintiff later commenced this action, asserting causes of action alleging breaches of confidentiality, privacy, and fiduciary duty, and seeking compensatory and punitive damages, the Center conceded liability, and the matter proceeded to trial on the question of damages. The jury awarded the plaintiff the sum of $65,000 for past and future emotional distress and the sum of $300,000 in punitive damages. The Supreme Court denied the Center's motion to set aside the verdict pursuant to CPLR 4404 and entered judgment. The Center appeals, challenging, inter alia, the award of punitive damages.

II

The Court of Appeals has most recently addressed the question of punitive or exemplary damages in Ross v Louise Wise Servs., Inc. (8 NY3d 478 [2007]), a case involving an adoption that occurred in 1961. The plaintiff adoptive parents sued the defendant, an adoption agency, for having intentionally concealed from them the history of schizophrenia and other severe emotional disturbances in the child's biological family. In defending the action, the agency explained that it had adhered to its policy at the time of not disclosing certain adverse information about a birth family's medical history if doctors were unsure that the conditions or problems in question were hereditary. The agency asserted that, in 1961, when the adoption occurred, it was the belief of its social workers and psychiatrists that a child's mental health depended principally on the way it was nurtured rather than on its birth family's medical history, and that disclosure could adversely affect the bonding between parents and child. It was not until some 20 years after the adoption that New York's Legislature enacted a law requiring that a birth family's medical history be disclosed, inter alia, to preadoptive and adoptive parents (see Social Services Law § 373-a). Nearly 15 years after that, the plaintiffs, whose adopted child, now an adult, continued to suffer from mental illness, demanded that the agency disclose the medical...