Rogers-Duell v. Ying–Jen Chen

• Decision Date: 04 November 2013
• Parties: Cameron ROGERS–DUELL, an infant, by and through his parent and natural guardian, Rhiannon ROGERS, Plaintiff, v. YING–JEN CHEN, M.D.; Ying J. Chen, M.D.; Ying C. Chen, M.D.; Ying Chen, M.D.; Clifton Park Pediatrics; Community Care Physicians, PC.; Maria D. Fort, M.D.; Judith Ruthberg, M.D.; Bellevue Maternity Hospital; Bellevue Maternity Hospital, Inc.; Bellevue Woman's Hospital; Bellevue Woman's Medical Center, Inc.; Bellevue Woman's Medical Center, Inc., as successor in interest of Bellevue Maternity Hospital, Inc.; Bellevue Woman's Medical Center Acquisition Company, Inc.; The Bellevue Corporation; Ellis Hospital; Ellis Medicine; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Maternity Hospital; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Maternity Hospital, Inc.; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Woman's Hospital; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Woman's Medical Center, Inc.; The Bellevue Corporation, as successor in interest of Bellevue Maternity Hospital; The Bellevue Corporation, as successor in interest of Bellevue Maternity Hospital, Inc.; The Bellevue Corporation, as successor in interest of Bellevue Woman's Hospital; The Bellevue Corporation, as successor in interest of Bellevue Woman's Medical Center, Inc.; Ellis Hospital, as successor in interest of Bellevue Maternity Hospital; Ellis Hospital, as successor in interest of Bellevue Maternity Hospital, Inc.; Ellis Hospital, as successor in interest of Bellevue Woman's Hospital; Ellis Hospital, as successor in interest of Bellevue Woman's Medical Center, Inc.; Ellis Medicine, as successor in interest of Bellevue Maternity Hospital; Ellis Medicine, as successor in interest of Bellevue Maternity Hospital, Inc.; Ellis Medicine, as successor in interest of Bellevue Woman's Hospital; Ellis Medicine, as successor in interest of Bellevue Woman's Medical Center, Inc.; ABC Corp. (corporate name being fictitious and unknown); ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Maternity Hospital; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Maternity Hospital, Inc.; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Woman's Hospital; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Woman's Medical Center, Inc.; and ABC Trust Corp. (corporate name being fictitious and unknown), Defendants.
• Court: New York Supreme Court

42 Misc.3d 291
974 N.Y.S.2d 769
2013 N.Y. Slip Op. 23374

Cameron ROGERS–DUELL, an infant, by and through his parent and natural guardian, Rhiannon ROGERS, Plaintiff,
v.
YING–JEN CHEN, M.D.; Ying J. Chen, M.D.; Ying C. Chen, M.D.; Ying Chen, M.D.; Clifton Park Pediatrics; Community Care Physicians, PC.; Maria D. Fort, M.D.; Judith Ruthberg, M.D.; Bellevue Maternity Hospital; Bellevue Maternity Hospital, Inc.; Bellevue Woman's Hospital; Bellevue Woman's Medical Center, Inc.; Bellevue Woman's Medical Center, Inc., as successor in interest of Bellevue Maternity Hospital, Inc.; Bellevue Woman's Medical Center Acquisition Company, Inc.; The Bellevue Corporation; Ellis Hospital; Ellis Medicine; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Maternity Hospital; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Maternity Hospital, Inc.; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Woman's Hospital; Bellevue Woman's Medical Center Acquisition Company, Inc., as successor in interest of Bellevue Woman's Medical Center, Inc.; The Bellevue Corporation, as successor in interest of Bellevue Maternity Hospital; The Bellevue Corporation, as successor in interest of Bellevue Maternity Hospital, Inc.; The Bellevue Corporation, as successor in interest of Bellevue Woman's Hospital; The Bellevue Corporation, as successor in interest of Bellevue Woman's Medical Center, Inc.; Ellis Hospital, as successor in interest of Bellevue Maternity Hospital; Ellis Hospital, as successor in interest of Bellevue Maternity Hospital, Inc.; Ellis Hospital, as successor in interest of Bellevue Woman's Hospital; Ellis Hospital, as successor in interest of Bellevue Woman's Medical Center, Inc.; Ellis Medicine, as successor in interest of Bellevue Maternity Hospital; Ellis Medicine, as successor in interest of Bellevue Maternity Hospital, Inc.; Ellis Medicine, as successor in interest of Bellevue Woman's Hospital; Ellis Medicine, as successor in interest of Bellevue Woman's Medical Center, Inc.; ABC Corp. (corporate name being fictitious and unknown); ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Maternity Hospital; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Maternity Hospital, Inc.; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Woman's Hospital; ABC Corp. (corporate name being fictitious and unknown), as successor in interest of Bellevue Woman's Medical Center, Inc.; and ABC Trust Corp. (corporate name being fictitious and unknown), Defendants.

Supreme Court, Albany County, New York.

Nov. 4, 2013.

[974 N.Y.S.2d 772]

Maragno Law, PLLC, Anthony M. Maragno, Esq., New York City, for Plaintiff.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Adam Cooper, Esq., Albany, for Defendants Ying–Jen Chen, M.D. and Community Care Physicians.

Burke, Scolamiero, Mortati & Hurd, LLP, Thomas Mortati, Esq., Albany, Attorneys for Defendant Maria D. Fort, M.D.

Petrone & Petrone, PC, Mark O. Chieco, Esq., Utica, for Bellevue Defendants.

Thorn, Gershon, Tymann & Bonanni, LLP, Paul Jureller, Esq., Albany, for Defendants Ellis Hospital and Ellis Medicine.

JOSEPH C. TERESI, J.

From approximately April 2002 to June 2003, Plaintiff suffered from hydrocephalus. He is now thirteen years old and commenced this medical malpractice action, by his mother, seeking damages due to Defendants' alleged failure to diagnose and treat his hydrocephalus. Issue was joined and, although a note of issue has been filed, limited discovery continues. A trial date certain has been set (October 6, 2014).

A discovery dispute has now arisen. On October 8, 2013, the parties appeared before the Court pursuant to paragraph 11 of the scheduling order of April 17, 2012 which provides: If there is a discovery issue (at any time), the parties agree as follows:

To comply with 22 NYCRR 202.07 to resolve the dispute and if it cannot be resolved, then to immediately telephone chambers and schedule a conference on a date convenient to all counsel for the purpose of resolving the discovery dispute. Every effort shall be made to select a date convenient to all counsel.

At least two days before the conference, each party shall deliver to the Court a statement outlining the dispute and stating its position.

At the conference on October 8th, each party provided submissions and was heard on the record. The discovery issues are the Defendants ¹' requests for: (1) authorizations

[974 N.Y.S.2d 773]

signed by Plaintiff's biological mother and father to obtain their respective medical and educational records, and (2) an order requiring the infant Plaintiff to undergo genetic testing. Plaintiff opposed Defendants applications. Because Defendants failed to establish their entitlement to any of the relief they seek, their requests are denied.

Plaintiff's Mother's Medical Records

“Where a mother sues only in a representative capacity as parent and natural guardian of an infant, she does not thereby place her own medical history in issue and waive her physician-patient privilege.” ( Schaner v. Mercy Hosp. of Buffalo, 15 A.D.3d 997, 998, 789 N.Y.S.2d 561 [4th Dept. 2005], quoting Sibley by Sibley v. Hayes 73 Corp., 126 A.D.2d 629, 511 N.Y.S.2d 65 [2d Dept. 1987]; Farkas v. Orange Regional Med. Ctr., 97 A.D.3d 720, 948 N.Y.S.2d 651 [2d Dept. 2012] ). Because Plaintiff's mother commenced this action in a representative capacity only, she has not placed her own medical history in issue. As such, Defendants are not entitled to her medical authorization.

Accordingly, Defendants' request for an authorization to obtain Plaintiff's mother's medical records is denied.

Plaintiff's Mother's Educational Records

Educational records are “of a confidential and private nature.” ( Ward ex rel. Ward v. County of Oneida, 19 A.D.3d 1108, 1109, 797 N.Y.S.2d 214 [4th Dept. 2005], quoting McGuane v. M.C.A., Inc., 182 A.D.2d 1081, 583 N.Y.S.2d 73 [4th Dept. 1992] ). “[T]hey are not discoverable unless the party seeking their production establishes their relevance and materiality for discovery purposes.” ( Helmer v. Draksic, 38 A.D.3d 1297, 1298, 833 N.Y.S.2d 333 [4th Dept. 2007], quoting McGuane v. M.C.A., Inc., supra;Monica W. v. Milevoi, 252 A.D.2d 260, 685 N.Y.S.2d 231 [1st Dept. 1999] ).

On this record, Defendants failed to establish the “relevance and materiality” of the additional educational records they seek to obtain from Plaintiff's mother. Plaintiff's mother, as is uncontested, provided Defendants with authorizations to obtain proof of her nursing degree and current college enrollment. According to Defendants' counsel, these authorizations are insufficient. Defendants seek additional authorizations to obtain “transcripts or other relevant educational documents.” Defendants, however, offered no proof that their vocational expert requires such documentation to render an opinion. Instead, Defendants justify their demand by opining that Plaintiff's vocational expert based his report on them. Such assertion, however, is not supported by the record. Plaintiff's vocational expert's opinion was based, in part, upon Plaintiff's mother's “level of education” as “reported” by her. Such vocational expert opinion did not state, or imply, that it was based upon an analysis of Plaintiff's mother's educational records underlying her nursing degree or her current transcripts. Because Defendants already have...