Tighe v. Ginsberg

• Decision Date: 14 April 1989
• Parties: John P. TIGHE, Respondent, v. Irwin A. GINSBERG, M.D. and Buffalo Otological Group, P.C., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 99

540 N.Y.S.2d 99

146 A.D.2d 268

John P. TIGHE, Respondent, v. Irwin A. GINSBERG, M.D. and Buffalo Otological Group, P.C. Appellants.

Supreme Court, Appellate Division Fourth Department.

April 14, 1989.

Damon & Morey by Iris B. Schifeling and Carmen P. Tarantino, of counsel, Buffalo, for appellants.

James J. Moran, Williamsville, for respondent.

Before CALLAHAN, J.P., and GREEN, PINE and LAWTON, JJ.

GREEN, Justice:

We hold that a patient's claim against a physician for breach of the fiduciary duty of confidentiality as a result of the physician's unauthorized disclosure of the patient's medical records is subject to the three year statute of limitations for negligence (CPLR 214[5] ), rather than the shorter limitations period for medical malpractice (CPLR 214-a).

On August 6, 1984 plaintiff visited Dr. Hoffman for treatment of a hearing problem. Dr. Hoffman, although not a party to this action, is an associate of defendant Dr. Ginsberg and an employee of defendant Buffalo Otological Group, P.C. At the time of his initial visit, plaintiff was an employee of Conrail and suspected that his hearing problem was job related. Following an examination, Dr. Hoffman informed plaintiff that he was suffering from severe bilateral hearing loss and tinnitus and that he should not continue working in a noisy environment.

On October 16, 1984, plaintiff returned for a follow-up visit. When told that Dr. Hoffman was unavailable and that Dr. Ginsberg would perform the examination, plaintiff initially protested based on his knowledge that Dr. Ginsberg had testified as an expert witness for Conrail in other litigations, but subsequently consented when told that Dr. Ginsberg was the only doctor available to examine him. On October 17, 1984, Dr. Ginsberg, without plaintiff's knowledge or authorization, forwarded a written report to Conrail in which he detailed the findings of the examination and discussed plaintiff condition as it related to his continued employment as well as other confidential matters.

In a complaint dated September 17, 1987, plaintiff alleged that Dr. Ginsberg's unauthorized disclosure gave rise to six causes of action: the first for breach of the fiduciary duty of confidentiality; the second for violation of Section 6509 of the Education Law; the third for violation of 8 NYCRR 29.1[b][8]; the fourth for violation of public policy; the fifth for negligence in violating various statutes, oaths and warranties of silence; the sixth for conspiracy to deprive plaintiff of his constitutional rights under the agreement between doctor and patient. Plaintiff demanded compensatory and punitive damages.

Defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that all the causes of action were for medical malpractice and barred by the applicable statute of limitations. Defendants moved in the alternative pursuant to CPLR 3211(a)(7) to dismiss the second, third, fourth and sixth causes of action on the ground that none stated a claim cognizable under New York law.

Special Term denied defendants' motion based on the statute of limitations finding that none of the six causes of action were grounded in medical malpractice. The court granted defendants' motion with respect to the second, third and fourth causes of action, finding that none of these theories are actionable under New York law as they create no private right of action. Plaintiff has not cross appealed from this portion of the court's decision. Moreover, plaintiff now concedes that the sixth cause of action should also be dismissed because in New York there is no cause of action for conspiracy in substantive tort (see, Callahan v. Callahan, 127 AD2d 298, 300, 514 N.Y.S.2d 819; Danahy v. Meese, 84 A.D.2d 670, 672, 446 N.Y.S.2d 611), or in contract (see, Bereswill v. Yablon, 6 N.Y.2d 301, 306, 189 N.Y.S.2d 661, 160 N.E.2d 531). Thus, the narrow issue on appeal is whether, for purposes of applying the appropriate statute of limitations, plaintiff's first cause of action for breach of a fiduciary duty of confidentiality and fifth cause of action for negligence are grounded in tort or medical malpractice.

Although no court in this state has addressed this specific issue (cf., Watts v. Cumberland County Hosp. System, Inc., 75 N.C.App. 1, 330 S.E.2d 242), this court has touched upon it in other similar contexts. For example, in MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 we recognized a cause of action by a patient against a psychiatrist for wrongful disclosure of the patient's personal information learned during the course of treatment and held that such a claim was for breach of the fiduciary duty of confidentiality and gave rise to a cause of action sounding in tort. There, the choice of theories of liability was not between negligence and medical malpractice but between negligence and contract. We recognized that the physician-patient relationship creates an implied covenant which when breached is actionable. We declined to characterize the cause of action as a breach of contract, however, because then recovery would be limited to economic loss and a plaintiff would be precluded from recovering for mental distress and related injuries. Accordingly, we held that "[d]efendant's breach was not merely a broken contractual promise but a violation of a fiduciary responsibility to plaintiff implicit in and essential to the doctor-patient relation" (84 A.D.2d 482, 487, 446 N.Y.S.2d 801 supra, ), and that the breach of such duty is actionable as a tort (id. at 486, 446 N.Y.S.2d 801). That conclusion is applicable here (see, Fedell v. Wierzbieniec, 127 Misc.2d 124, 485 N.Y.S.2d 460, affd. 116 A.D.2d 990, 498 N.Y.S.2d 1013; Felis v. Greenberg, 51 Misc.2d 441, 273 N.Y.S.2d 288; Clark v. Geraci, 29 Misc.2d 791, 208 N.Y.S.2d 564; see also, Annotation, 48 ALR4th 668,...