Wheeler v. Commissioner of Social Services of City of New York

• Citation: 233 A.D.2d 4,662 N.Y.S.2d 550
• Parties: , 1997 N.Y. Slip Op. 7720 Monique WHEELER, etc., et al., Appellants, v. COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, et al., Defendants, Graham Windham Services for Family and Children, Respondent.
• Decision Date: 22 September 1997
• Court: New York Supreme Court Appellate Division

Page 550

662 N.Y.S.2d 550

233 A.D.2d 4, 1997 N.Y. Slip Op. 7720

Monique WHEELER, etc., et al., Appellants, v. COMMISSIONER OF SOCIAL SERVICES OF THE CITY OF NEW YORK, et al., Defendants Graham Windham Services for Family and Children, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 22, 1997.

Weiss & Rosenbloom, P.C., New York City (Barry D. Weiss, of counsel), for appellants.

Gordon & Silber, P.C., New York City (David Henry Sculnick, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and RITTER, JJ.

ROSENBLATT, Justice Presiding.

The case before us involves the confidentiality of records kept under Social Services Law § 372.

When she was just under 13 years old the plaintiff Monique Wheeler (hereinafter the plaintiff) was placed in a group home owned and operated by the defendant Graham Windham Services for Family and Children (hereinafter Graham Windham).

She has commenced this action against Graham Windham ¹ and the defendant City agencies that brought about her placement. ² As against Graham Windham she alleges negligent supervision in allowing her to leave the home late at night on May 30, 1992, following which she was reportedly raped during the early morning hours of the next day. For an appreciable period of time thereafter the plaintiff continued to reside at Graham Windham.

This appeal involves the plaintiff's motion for the production and inspection of all her own medical and psychological records in Graham Windham's custody. She asserts that the records will fortify her damages claim. The case falls under the general rubric of discovery; what makes it noteworthy is that the defendant Graham Windham, which is the custodian of the records pursuant to Social Services Law § 372, has, among other things, raised the claim of confidentiality.

Often, the assertion that medical or psychological records are confidential is raised by the person who is the subject of the records, i.e., the patient; here, the plaintiff. In this case, the defendant-custodian has raised the claim against the patient. Because the question involves the interplay of several statutes and competing considerations, we will address the extent to which such discovery is appropriate, and the procedure by which it is best conducted.

The Supreme Court ordered Graham Windham to produce the plaintiff's records for in camera inspection so as to determine which records were discoverable. The court then issued an order dated April 22, 1996, directing Graham Windham to turn over only a six-page "Incident Report dated May 31, 1992", and a "UCR Face Sheet/Request/Notification/Authorization form dated April 17, 1995 consisting of nine pages". The plaintiff moved to reargue claiming that the court issued the order dated April 22, 1996, without a hearing, and that she was thereby deprived of an opportunity to participate meaningfully in the discovery process.

The Supreme Court granted the motion to reargue, but denied the plaintiff's request for a hearing, ruling that she had failed to demonstrate that Social Services Law § 372(3) (allowing for the discovery of social services agencies' records) mandates that an evidentiary hearing be held following the court's in camera inspection of the records.

Graham Windham does not dispute that it is obliged under Social Services Law § 372 to generate and keep records of those who are placed in its care. Over the years, the Legislature has recognized that these records deserve an appropriate degree of confidentiality, considering that they must contain individualized and often highly personal information about the residents. A degree of confidentiality was at least implied in the early enactments (see, L.1884, ch. 438, § 3; L.1894, ch. 54, § 1), and under ensuing statutes the Legislature expressly declared the records confidential (L.1924, ch. 437, § 1, amending State Charities Law § 301). Throughout the long evolution of the provisions that have governed such record keeping, the Legislature has continued to preserve confidentiality and to limit disclosure (see, L.1934, ch. 802; L.1985, ch. 880) up through the most recent relevant amendment of Social Services Law § 372 in 1993 (L.1993, ch. 394).

In the decisional law relating to the discovery of these records, it has often been the agencies and institutions that have sought to safeguard the confidentiality of the records of their resident patients from the reach of various third persons such as litigants (see, Quillen v. State of New York, 191 A.D.2d 31, 599 N.Y.S.2d 721; Matter of Wasserstein, 54 Misc.2d 948, 283 N.Y.S.2d 753), and even foster parents (Matter of Louis F., 42 N.Y.2d 260, 397 N.Y.S.2d 735, 366 N.E.2d 824). Here, the question is complicated by the stance of Graham Windham, which has raised this claim of confidentiality not against third persons, but against the resident patient herself.

There is a dearth of authority on the question of a resident patient's entitlement to her own medical records kept by a residential home or agency pursuant to Social Services Law § 372. The question is further complicated by the plaintiff's proposed use of the records against Graham Windham in her action to recover damages from Graham Windham. Both sides have focused on the confidentiality provisions of Social Services Law § 372(4) based on court decisions issued prior to the 1993 amendment of that statute. In 1993, however, the Legislature continued to characterize these records as confidential, but for the first time made the discovery of those records "subject to the provisions of article thirty-one of the civil practice law and rules" (L.1993, ch. 394, § 1; Social Services Law § 372[3] ).

The Legislature's motivation for shifting the accessibility of records protected by Social Services Law § 372 to the CPLR article 31 discovery theater is important, and bears on the appeal before us. In a memorandum of support for the bill by which the amendment was initiated, the following appears in the "justification" paragraph to Assembly Bill A 6345:

"JUSTIFICATION: Section 372 was enacted to protect the confidentiality of social services records regarding children and parents. It has, however, also been used to prevent children and parents from obtaining access to their own records. In addition, recent amendments to the Family Court Act (Section 1038) and the Social Services Law (Sections 384-b, 392, 409-e(4), 409-f), have given children and parents, and their attorneys, access to the records kept about them, especially when they are parties to litigation. This bill would clarify that those sections override the limitations of Section 372, and that parties involved in litigation may have access when necessary" (emphasis supplied) (Mem in Support, Bill Jacket, L.1993, ch. 394).

Senator Stephen Saland's memorandum also expands upon the interrelation of CPLR article 31 with the standard protective devices:

"SUMMARY OF PROVISIONS:

Section 1 of the bill amends Social Services Law Section 372 to clarify that foster care records regarding children are confidential but are subject to the provisions of Article 31 of the Civil Practice Law and Rules. (Pursuant to Family Court Act Section 1038, Article 31 of the CPLR also applies to child protective proceedings.) Thus, a parent or guardian for a child could move to obtain such records pursuant to a demand for discovery. An agency would be able to move for a protective order where some part of the record should not be produced" (Introducer's Mem in Support of Senate Bill S 4867-A, Bill Jacket, L.1993, ch. 394).

We must therefore examine the arguments for and against discovery, within the scope of CPLR article 31.

THE CONFIDENTIALITY OF MEDICAL RECORDS

CPLR article 31, which governs discovery, is limited by CPLR 4504, which addresses confidentiality of medical records in the context of the physician-patient privilege (see, Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 395, 497 N.Y.S.2d 348, 488 N.E.2d 94).

Having pioneered the use of statutes to protect the confidentiality of medical records, ³ New York has been zealous in safeguarding those privacy concerns (see, e.g., Mental Hygiene Law § 33.13 [confidentiality of clinical records]; Mental Hygiene Law § 33.16 [qualified persons' access to clinical records]; Public Health Law § 2805-g[3] [confidentiality of hospital records]; 8 NYCRR 29.1[b][8] [professional obligations]; 10 NYCRR 405.10[a][5] [confidentiality of hospital records]; Public Health Law § 18[6] [confidentiality of information disclosed to third persons]; see also, Rockland County Patrolmen's Benevolent Assn. v. Collins, 225 A.D.2d 534, 638 N.Y.S.2d 747; see generally, Vilensky, New York Law on Confidentiality of Medical Records, parts I & II, New York State Bar Journal, Jan. 1994, No. 1, at 38, Feb. 1994, No. 2, at 24).

The doctrine of confidentiality is based on a well-accepted premise: The patient whose privacy and sensibilities are safeguarded will be the more likely to reveal information that will result in improvement or cure. This benefits the individual and, in turn, the community and, ultimately, the population. This rationale does not advance Graham Windham's claim, considering that it is not Graham Windham but the patient, as the subject of the records, who enjoys the confidentiality of the records. The privilege, as the Court of Appeals put it, belongs only to the patient (Dillenbeck v. Hess, 73 N.Y.2d 278, 289, 539 N.Y.S.2d 707, 536 N.E.2d 1126). Although qualified parties may invoke the privilege (see, CPLR 3101[b] ), they do so on the patient's behalf (Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 135, 463 N.Y.S.2d 758, 450 N.E.2d 678), and it is for the patient and no one else to decide whether to waive confidentiality (see, CPLR 4504[a] ).

Because it is Graham Windham, not the plaintiff, asserting confidentiality, we must measure Graham Windham's assertion against the plaintiff's rights.

THE RIGHT OF...