Opinion
# 2012-048-039 Claim No. 120301 Motion No. M-81388
06-07-2012
CHAPMAN v. THE STATE OF NEW YORK
Synopsis
In an action seeking damages for personal injuries sustained in an inmate-on-inmate assault, Defendant's motion for a protective order was granted in part and denied insofar as Claimant sought his own treatment and disciplinary records and nonmedical information contained within the psychiatric records of the inmates that allegedly assaulted Claimant. Case information
UID: 2012-048-039 Claimant(s): KEVIN CHAPMAN Claimant short name: CHAPMAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended to reflect the State of New name) : York as the only properly named defendant. Third-party claimant (s): Third-party defendant(s): Claim number(s): 120301 Motion number(s): M-81388 Cross-motion number (s): Judge: GLEN T. BRUENING LAW OFFICES OF ANDREW J. SCHATKIN Claimant's attorney: By: Andrew J. Schatkin, Esq. HON. ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: Joel L. Marmelstein, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: June 7, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Kevin Chapman commenced this action seeking damages for personal injuries sustained due to Defendant's negligence when, on September 11, 2010, he was allegedly assaulted by other inmates while he was incarcerated at Gouverneur Correctional Facility under the supervision of the Department of Correctional Services ("DOCS"). Specifically, Claimant asserts that upon opening the door to enter into his housing area, inmate Corye held Claimant while inmate Robinson cut him badly in the face. Defendant now moves seeking a protective order pertaining to certain discovery demands made by Claimant. Claimant opposes the motion.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS) (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim makes allegations of violations that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Claimant served Defendant with certain Discovery Demands dated February 24, 2012. On or about March 6, 2012, Defendant served its Response to Claimant's Discovery Demands (see Affirmation of Joel L. Marmelstein, Esq., paragraph 4; Defendant's Response to Claimant's Discovery Demand, filed March 6, 2012). On or about April 10, 2012, Defendant served its First Supplemental Response to Claimant's Discovery Demand (see Defendant's First Supplemental Response to Claimant's Discovery Demand, filed April 12, 2012). As is pertinent to the instant motion, Claimant's Discovery Demands made the following numbered demands, to which Defendant objected:
" 2. Names of the doctors and nurses and technicians that treated the Claimant for this assault.(Affirmation of Joel L. Marmelstein, Esq., Exhibit A).
. . .
4. All disciplinary records of the Claimant.
. . .
6. All medical records concerning the treatment of the Claimant after the assault.
. . .
8. All records of drugs and prescription drugs prescribed by the doctors at the facility to treat the Claimant for this assault.
9. All records of prior inmate assaults either by correctional officers or by inmates, for ten years prior to this assault.
10. All medical records in connection with these prior assaults just stated.
11. All psychiatric records of the inmates if they exist, who assaulted the Claimant and the names of the psychiatrist who treated them."
In support of its motion to preclude, Defendant asserts that, with respect to Demands 2, 6 and 8, the information sought is not in the exclusive possession of Defendant. However, Defendant concedes that Claimant is entitled to the information demanded upon payment of reasonable copying costs (see Affirmation of Joel L. Marmelstein, Esq., paragraph 7). Defendant argues that Claimant's Demands 4, 9, 10 and 11 seek irrelevant information, and are overly broad, vague and burdensome. Defendant further contends that disclosure of the information sought in Claimant's Demands 9, 10, and 11 would violate Civil Rights Law § 50-a, Public Officers Law §96, and that the information sought through Demand 9 would constitute an invasion of privacy and is privileged. Defendant further argues that Demands 10 and 11 are improper and that disclosure of information sought would violate the Federal Health Insurance Portability in Accountability Act of 1996 (hereinafter HIPAA) (see Pub. L. 104-191, 110 U.S. Stat. 1936 [1996]; see also 45 CFR parts 160, 164). In opposition to Defendant's motion, Claimant, through counsel, agrees to "defray the copying expenses" for the documents sought in Claimant's Demands 2, 4, 6 and 8 and argues that Claimant's disciplinary records are relevant to reveal "any prior problems he may have had and impact on understanding and comprehending the present assault on him" (Affirmation of Andrew J. Schatkin, Esq., paragraph 4). With respect to Demands 9 and 10, Claimant agrees to limit the demand to the three (3) years prior to the assault on Claimant and contends that these records are relevant to establish the facility's culture. Claimant also contends that psychiatric records of the inmates that assaulted Claimant are relevant to his Claim.
Defendant also argues that Claimant is responsible for the copying costs associated with Demand 4.
CPLR § 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." Accordingly, disclosure is required "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). However, information that is privileged or palpably improper, "i.e., irrelevant, overbroad and burdensome" is not subject to disclosure (DG&A Mgt. Servs., LLC v Securities Indus. Assn. Compliance & Legal Div., 78 AD3d 1316, 1318 [3d Dept 2010] [internal quotation marks and citations omitted]). It is Claimant's burden initially, as the party seeking disclosure, "to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims . . . and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy" (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989] [internal citations omitted]). It is Defendant's burden, as the party challenging disclosure, to establish that the information sought is privileged or immune from disclosure (see Marten v Eden Park Health Servs., 250 AD2d 44, 46-47 [3d Dept 1998]). The trial court, while having broad direction to issue protective orders to limit discovery, must balance "the general preference for allowing discovery . . . . against the objecting party's prerogative to be free of 'unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice'" (Brignola v Pei-Fei Lee, M.D., P.C., 192 AD2d 1008, 1009 [3d Dept 1993], quoting CPLR 3103 [a]).
Initially, as Defendant concedes that Claimant is entitled to the information sought in Demands 2, 6, and 8, the Court finds that Claimant is entitled to receive copies of documents which are responsive to those Demands upon payment of the appropriate fee (see Gittens v State of New York, 175 AD2d 530, 530-531 [3d Dept 1991]; Civil Rights Law §§ 79 [3]; 79-a [3]).
In addressing Claimant's Discovery Demands 4, 9, 10 and 11, the Court first must undertake an analysis of the cause of action alleged to determine the relevance of the information sought. It is clear that the State owes a duty of care to protect inmates within its custody from reasonably foreseeable risks of harm (see Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). However, the State is not an insurer of inmate safety and, in a negligence action commenced against the State based on personal injuries sustained in an inmate-on-inmate assault, a Claimant is entitled to recover if he or she can establish that Defendant knew or reasonably should have known that the Claimant was at risk of harm (see Id. at 253). It is irrelevant that greater precautions could have been taken to prevent Claimant's injury if the injury was not reasonably foreseeable at the time of the incident (see Gordon v City of New York, 70 NY2d 839, 841 [1987]).
With respect to Claimant's Demand 4, in liberally construing the words "material and necessary" to require disclosure "of any facts bearing on the controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d at 406), the Court finds that Claimant's own disciplinary records, which may provide insight into Claimant's behavior and relationships at the facility, are relevant to the prosecution of his Claim. Defendant's conclusory assertions that the demand is overly broad and burdensome fail to establish that the information sought is immune from disclosure. Accordingly, Claimant is entitled to receive copies of documents which are responsive to his Discovery Demand 4 upon payment of the appropriate fee.
The Court reaches a different conclusion with respect to Claimant's Demands 9 and 10, seeking all records of prior inmate assaults either by correction officers or by inmates and related medical records. Even if the demand is limited to the three (3) years prior to the assault at issue, the information sought is not limited to incidents involving other inmates, to assaults similar to the type of assault perpetrated on Claimant, to assaults perpetrated by the same inmates that allegedly assaulted Claimant, or to assaults occurring in the same area where the assault on Claimant is alleged to have occurred. Accordingly, the Court finds Claimant has not demonstrated that the information sought by Demands 9 and 10 will result in the disclosure of relevant evidence tending to establish that the risk of harm to Claimant on the date of the assault was reasonably foreseeable, and Defendant is entitled to a protective order with respect to the Claimant's Discovery Demands 9 and 10.
Turning to Claimant's Demand 11 - seeking the psychiatric records of the inmates that allegedly assaulted Claimant - in inmate-on-inmate assault cases "[e]vidence of the attacker's prior behavior and a diagnosis of his [or her] mental condition would be material and necessary to the prosecution of [a] [C]laim" (Wilson v State of New York, 36 AD2d 559, 559 [3d Dept 1971]). However, "the State may invoke the privilege afforded by CPLR 4504 to avoid disclosure concerning confidential communications between one of its inmates and staff physicians or psychiatrists, as well as records relating to an inmate's prognosis and the diagnosis of his propensities and condition by prison physicians and psychiatrists" (Id., at 560; see CPLR § 3101 [b]). Here, while not specifically referencing the physician-patient privilege in its motion papers, Defendant asserts that the demand violates HIPAA and Public Officers Law §96 (see Public Officers Law Article 6-A, the Personal Privacy Protection Law) which, respectively and subject to certain exceptions, operate to limit the unauthorized disclosure of indexed personal information (see Matter of Spargo v New York State Commn. on Govt. Integrity, 140 AD2d 26, 31 [3d Dept 1998], lv denied 72 NY2d 809 [1988]), and the unauthorized disclosure of "identifiable patient's health information" (Matter of Miguel M. (Barron), 17 NY3d 37, 42 [2011]; see 45 CFR § 164.508). The psychiatric records sought, insofar as they pertain to diagnosis and treatment, are "unqualifiedly privileged under the physician-patient privilege" (Moore v St. John's Episcopal Hosp., 89 AD2d 618, 619 [2d Dept 1982]; see Mohr v Hillside Children's Ctr., 1 AD3d 176, 176 [1st Dept 2003]). Because Defendant has challenged the appropriateness of the dissemination of that information asserting that it is protected information, the Court finds that Defendant has sufficiently raised the issue of privilege with respect to Claimant's Discovery Demand 11.
Generally, information concerning medical diagnosis and treatment is privileged information which may not be disclosed absent a waiver of that privilege (see CPLR 4504 [a];
Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]). Moreover, as is relevant to the psychiatric records sought by Claimant in this action, Mental Hygiene Law § 33.13 (c) prohibits disclosure of such clinical records "absent a finding that the interests of justice significantly outweigh[ ] the need for and the right of the patient's confidentiality" (Szmania v State of New York, 82 AD3d 1688, 1690 [4th Dept 2011] [internal quotation marks and citations omitted]). Here, there is no evidence that the physician-patient privilege attached to the medical information contained within the psychiatric records demanded has been waived. Furthermore, based on Claimant's generalized assertions of relevance, the Court finds that the interests of justice standard under Mental Hygiene Law § 33.13 has not been met, insofar as the psychiatric records sought pertain to diagnosis and treatment. However, "disclosure of nonmedical information, including reports of prior assaults or similar violent behavior . . . does not violate the physician-patient privilege" (Friend v SDTC-Center for Discovery, Inc., 13 AD3d 827, 828 [3d Dept 2004] [internal citations omitted]) and, based on the notice requirements Claimant must establish to succeed in the prosecution of his Claim, the Court finds that Claimant is entitled to "information of a nonmedical nature relating to any prior assaults or similar violent behavior" (J.Z. v South Oaks Hosp., 67 AD3d 645, 646 [2d Dept 2009]). Insofar as Defendant did not address the applicability of either HIPAA or Public Officer's Law § 96, the Court finds that Defendant failed to meet its burden of demonstrating that nonmedical information contained within the psychiatric records sought is exempt from discovery under those statutes. Likewise, to the extent that Defendant alludes that the information contained within the psychiatric records sought is otherwise protected from disclosure by virtue of Civil Rights Law § 50-a, the Court finds that Defendant failed to demonstrate the required "substantial and realistic potential of the requested material for the abusive use against [an] officer" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 159 [1999]). Thus, the Court finds that Claimant is entitled to disclosure of any nonmedical information relating to any prior assaults or similar violent behavior contained in the psychiatric records demanded in Claimant's Discovery Demand 11 (see Moore v St. John's Episcopal Hosp., 89 AD2d at 619). However, the Court exercises its discretion in controlling discovery by directing Defendant to produce copies of the psychiatric records of the inmates who assaulted Claimant, if they exist, for in camera review, as hereinafter ordered, to allow the Court to determine if there is any information of a nonmedical nature relating to assaults, violent behavior, or other relevant matter related to the allegations in this Claim (see Sohan v Long Is. Coll. Hosp., 282 AD2d 597, 598 [2d Dept 2001]). After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant.
Accordingly, it is hereby
ORDERED that Defendant's motion (M-81388) seeking a protective order prohibiting discovery of the documents demanded in Claimant's Discovery Demands 9 and 10 is granted and Defendant is hereby relieved of any obligation to respond to Claimant's Discovery Demands 9 and 10; and it is further
ORDERED that Defendant's motion (M-81388) seeking a protective order prohibiting discovery of the documents demanded in Claimant's Discovery Demands 2, 4, 6 and 8 is denied, and Defendant is directed to advise Claimant as to the cost of photocopying these records within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. Claimant shall then forward proper payment for such photocopying to the Assistant Attorney General, who shall, within fourteen (14) days of receipt of said payment, provide Claimant with a copy of the requested records; and it is further
ORDERED that to the extent that Defendant's motion (M-81388) seeks a protective order prohibiting discovery of the documents demanded in Claimant's Discovery Demand 11, Defendant is directed to produce two copies of the psychiatric records of the inmates who assaulted Claimant, if they exist, for in camera review within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. One copy shall be unredacted and the other shall be marked with proposed redactions that Defendant believes will protect any privileged information. Defendant is directed to sequentially number the pages of the records submitted. If there are no records responsive to Demand 11, then Defendant is directed to produce an affidavit from someone with personal knowledge to the Court so stating within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimant.
June 7, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed September 2, 2011;
Notice of Motion, filed April 11, 2012;
Affirmation of Joel L. Marmelstein, Esq., dated April 10, 2012, with Exhibits A and B;
Defendant's Response to Claimant's Discovery Demand, filed March 6, 2012;
Defendant's First Supplemental Response to Claimant's Discovery Demand, filed April 10, 2012;
Affirmation of Andrew J. Schatkin, Esq., dated April 30, 2012.