Sanders v St. Charles Hosp. & Rehabilitation

[*1] Sanders v St. Charles Hosp. & Rehabilitation 2006 NY Slip Op 51231(U) [12 Misc 3d 1175(A)] Decided on May 12, 2006 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 12, 2006
Supreme Court, Suffolk County

Cheryl Sanders, Plaintiff,

against

St. Charles Hospital and Rehabilitation, Defendant.



Cheryl Sanders, Plaintiff, against

against

Fred V. Orcutt, M.D., Defendant.



01-3170

Thomas F. Whelan, J.

ORDERED that this application by plaintiff seeking an Order directing defendant to release the name and address of the patient who shared plaintiff's room on May 20, 2000, is granted; and it is further

ORDERED that, within thirty (30) days of the date herein, defendant is directed to have a [*2]hospital administrator conduct a search of the hospital records to ascertain the name and address of the person who shared the hospital room with the plaintiff at the time of her fall in the hospital and forward said information to plaintiff's counsel; and it is further

ORDERED that in the event the defendant's inquiry is unsuccessful, then within thirty (30) days of the date herein, defendant shall submit an affidavit of the administrator who conducted the search attesting to his/her efforts to ascertain the requested information and serve a copy of the affidavit upon plaintiff's counsel and submit the original to the Court; and it is further

ORDERED a conference is scheduled for all parties to attend on May 17, 2006, at 9:30 a.m., in Part 33, at the courthouse located at 235 Griffing Avenue - Annex, Riverhead, New York; and it is further

ORDERED that plaintiff's counsel is directed to serve a copy of this Order with Notice of Entry upon counsel for defendant within fifteen (15) days of the date herein pursuant to CPLR 2103(b)(1), (2) or (3) and thereafter file the affidavit of service with the Clerk of the Court.

At a conference held before the Court on February 28, 2006, the issue concerning the plaintiff's attempt to learn the name and address of the person who shared a hospital room with the plaintiff during the period she allegedly sustained her injuries in a fall in her room, was addressed. Defendant opposes the application based upon patient confidentiality under HIPAA, the appropriate sections of the CPLR and the Public Health Law. By Order, dated February 28, 2006, the parties were directed to submit their demand and response by correspondence to the Court concerning the issue with appropriate case law in support of their respective positions.

The parties have complied with the Court's Order. However, defendant's counsel states that because of the passage of time, the hospital cannot ascertain the name and address of the patient.

Pursuant to CPLR 3101(a), there shall be full disclosure of all matter material and necessary in the prosecution of an action (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 288 NYS2d 449 [1968]). "As a general rule, disclosure of the name and address of a nonparty patient who may have been a witness to an alleged act of negligence or malpractice does not violate the patient's privilege of confidentiality of treatment" (Rabinowitz v St. John's Episcopal Hosp., 24 AD2d 530, 531, 808 NYS2d 280 [2d Dept 2005] citations omitted). Nevertheless, where such disclosure could lead to the inadvertent discovery of that person's medical history, thus compromising the roommate's privacy rights under the guidelines of the Federal Health Insurance Portability and Accountability Act of 1996 (see CPLR 4504[a]; Public Health Law § 2803-c[3][f]), dissemination of this information will be denied (see Gunn v Sound Shore Med. Ctr. of Westchester, 5 AD3d 435, 772 NYS2d 714 [2d Dept 2004]).

In Gunn, the accident occurred in a cardiac rehabilitation center of the hospital, leaving no doubt as to the possible medical condition of the party whose identity was being sought. Here, [*3]while the defendant is known for being a rehabilitation hospital, it is also a general hospital. Therefore, the medical condition of the roommate would not necessarily be asserted to a specific medical condition and would be discoverable (see Rogers v NYU Hosp., 8 Misc 3d 730, 795 NYS2d 438 [Sup Ct. New York County 2005]).

In the instant matter, defendant's counsel has asserted that the defendant is unable to determine who the plaintiff's roommate was due to the passage of time. Therefore, the Court directs that the defendant have a hospital administrator conduct a search of the hospital records to try to ascertain the name and address of the person who shared plaintiff's hospital room at the time of her fall in the hospital. Should the inquiry be unsuccessful, then the defendant shall submit an affidavit of the person who conducted the search wherein said party shall attest to the efforts undertaken and submit the affidavit to the Court and serve a copy upon plaintiff's counsel within thirty (30) days of the date herein. A party "cannot be compelled to produce that which it does not have or can't produce" (see Euro-Central Corp. v Dalsimer, Inc., 22 AD3d 793, 803 NYS2d 171 [2d Dept 2005]).

Accordingly, plaintiff's application is granted as herein indicated. This constitutes the Order and decision of the Court.

DATED: May 12, 2006__________________________

THOMAS F. WHELAN, J.S.C.