Opinion
400783/2011.
July 21, 2011.
Eric T. Schneiderman, Attorney General of the State of "New York, New York, New York, for Petitioner.
Wood Scher, White Plains, New York, for Respondent Dr. D.B.
DECISION AND ORDER
Papers considered in review of this petition:
Verified Petition............1 Aff in Opp.................2,3In this proceeding, petitioner State Board for Professional Medical Conduct (the "Board"), seeks an order, pursuant to Mental Hygiene Law § 33.13(c)(1) and (8), directing disclosure by respondent Payne Whitney Psychiatric Clinic ("Payne Whitney") of a certified copy of the record of treatment provided by Payne Whitney to respondent "Dr. D. B.," and that said records be maintained by the Board as confidential pursuant to Public Health Law § 230. Respondent Dr. D.B. opposes the petition as premature and unwarranted, and argues that he should be given an opportunity to be interviewed first, so as to provide an explanation of the issues under investigation.
The Board, in compliance with Public Health Law § 230(10)(1), must keep any information obtained in an investigation confidential, and may not disclose the names of patients. Accordingly, the pseudonym "Dr. D.B." is being used to refer to the patient/ physician under investigation.
As stated in its Verified Petition, the Board is investigating allegations that Dr. D.B., a physician licensed to practice medicine in New York, has a psychiatric condition which impairs his ability to practice, and which would constitute professional misconduct pursuant to Education Law § 6530(8). The Office of Professional Medical Conduct ("OPMC"), as alleged in the Verified Petition, acquired information to substantiate these allegations. Pursuant to Public Health Law § 230(10(a)(i), the Board is bound to investigate all complaints of professional misconduct it receives.
Pursuant to the verified petition, the OPMC "is an administrative agency within the Department which operates on the Board's behalf and under its discretion. OPMC's duties, pursuant to PHL § 230, are to investigate and, in appropriate circumstances, institute disciplinary hearings against members of the medical profession."
The Board states that it obtained information that Dr. D.B. was admitted to the inpatient psychiatric unit at the Payne Whitney in 2008, 2009 and 2010. Dr. D.B. acknowledges that he received inpatient psychiatric care one three occasions. The Board is now seeking a certified copy of the clinical records of treatment provided to Dr. D.B. at Payne Whitney. The Board argues that the interests of justice "significantly outweigh the need for confidentiality," in accordance with the requirements of Mental Hygiene Law § 33.13(c)(1), as the Board expects the records to reflect that Dr. D.B. has a psychiatric condition which impairs his ability to practice medicine.
In support of its petition, the Board submits four letters sent by Assistant Attorney General Roy P. Nemerson ("Nemerson") to Dr. D.B., advising him that upon the request of OPMC, the Office of the Attorney General of the State of New York would seek a court order, pursuant to Mental Health Law § 33.13(c)(1) and (8), requiring disclosure by Payne Whitney of the clinical records of Dr. D.B.'s evaluation and treatment. The letters were sent by both first class and certified mail to the addresses Dr. D.B. registered with the State Department of Education. The certified letters were returned to Nemerson marked "Return to Sender" and "Unclaimed."
The Board also submits in support of its petition certain documents in camera to the Court. The Board avers that these documents establish that it has a substantial basis to investigate Dr. D.B.
In opposition, Dr. D.B. submits an attorney affirmation and his own affidavit. Dr. D.B. states that he was "duly discharged from Payne Whitney" and that he is "not mentally impaired nor in need of medical treatment for mental impairment. Because I was hospitalized three times I am required to see a psychiatrist on an out-patient basis twice a month. However, I do not think my visits with the psychiatrist are necessary or are doing any good." Neither Payne Whitney nor respondent New York-Presbyterian Hospital submitted papers in this proceeding.
Discussion
Mental Hygiene Law § 33.13(c)(1) "requires that information contained in records required to be maintained by facilities licensed or operated by the Offices of Mental Health, Mental Retardation and Developmental Disabilities, including the identification of patients or clients and clinical records or information tending to identify patients or clients, shall not be a public records, and shall not be released except pursuant to a court order requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality." Heard v. Cuomo, 142 A.D.2d 537 (1st Dep't 1988). See also Lee v. New York City Transit Auth., 175 Misc. 2d 632, 634 (Sup. Ct. Kings Co. 1998) (patient's medical records are ordinarily privileged and may not be disclosed absent a waiver, or by a court order finding the interests of justice significantly outweigh the need for confidentiality) (citations omitted).
Such medical records can, pursuant to Mental Hygiene Law § 33.13(c)(8), be disclosed "to the state board for professional medical conduct or the office of professional discipline or their respective representatives when such persons or entities request such information in the exercise of their statutory function, power and duties provided, however, that" when the subject of inquiry is also a patient, the information shall only be released by court order pursuant to § 33.13(c)(1).
After reviewing the verified petition and documents submitted in support, including those submitted in camera, and the affidavit in opposition, it is clear that the "interests of justice significantly outweigh the need for confidentiality," and the Payne Whitney treatment records should be disclosed to the Board. The Board is obligated to investigate the allegations that Dr. D.B. suffers from a psychiatric condition which impairs his ability to practice medicine, and in order to fully comply with its obligations, the Board must be able to review the records of Dr. D.B.'s inpatient psychiatric care. See State Board for Professional Medical Conduct v. New York State Comm'r of Mental Hygiene, 64 A.D.2d 224 (3d Dep't 1978) (finding "it was plainly reasonable for Special Term to conclude that petitioner could not adequately and properly fulfill [its] responsibility and protect the public interest without access to [the patient-physicians's] records" at the treating psychiatric center).
In accordance with the foregoing it is
ORDERED and ADJUDGED that petitioner State Board for Professional Medical Conduct's petition is granted; and it is further
ORDERED that respondent Payne Whitney is ordered to provide to petitioner State Board for Professional Medical Conduct a certified copy of the records of treatment rendered by Payne Whitney to Dr. D.B. within thirty (30) days of the date of entry of this order; and it is further
ORDERED that petitioner State Board for Professional Medical Conduct maintain the disclosed records as confidential, pursuant to Public Health Law § 230; and it is further
ORDERED that petitioner State Board for Professional Medical Conduct, within ten (10) days of the date of this order, resubmit affidavits of service which properly preserve the confidentiality of Dr. D.B., pursuant to Public health Law § 230(10)(1) ; and it is further
The Court has removed the original affidavits of service which revealed the identity of Dr. D.B. from the Court files.
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the decision and order of the court.