Heines v Minkowitz

[*1] Heines v Minkowitz 2006 NY Slip Op 52476(U) [14 Misc 3d 1210(A)] Decided on December 13, 2006 Supreme Court, Richmond County Maltese, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2006
Supreme Court, Richmond County

William Heines and ANNETTE NASH, Plaintiffs

against

DR. Barbara Minkowitz, STATEN ISLAND UNIVERSITY HOSPITAL, DR. ARTHUR BUONASPINA, DR. DENIZ CEREB, DENIZ CEREB, M.D., P.C. and DR. "JANE DOE" THOMAS, Defendants



Index No.: 12403/2001

Joseph J. Maltese, J.

The plaintiff-mother of the injured-plaintiff is ordered to submit her psychiatric records to this court to be examined in camera to ascertain whether she is suffering from Munchausen Syndrome By Proxy (MSBP), or such other factitious disorder or condition that has contributed to the medical treatment history of her son, William Heines, in this medical malpractice action.

The American Psychological Association, which publishes the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), lists the recognized mental disorders. The DSM-IV-TR published in 2000 states:

"Factitious disorders are characterized by physical or psychological symptoms that are intentionally produced or feigned in order to assume the sick role." Munchausen Syndrome is the most severe form of factitious disorder (DSM-IV-TR).

Munchausen Syndrome By Proxy is a term applied when an adult, usually the mother, presents a false history to the physician regarding a child who is not suffering from any of the fabricated [*2]symptoms. This history causes the physician to perform unnecessary diagnostic procedures that do not result in any specific diagnosis (DSM-IV-TR, 2000, p. 513-517).

In 1995, the American Psychological Association Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) included a definition for factitious disorder by proxy, which is now the accepted psychiatric category for Munchausen's Syndrome By Proxy (MSBP). The definition includes the following:

1. Intentional production or feigning of physical or psychological signs or symptoms in another person who is under the individual's care.

2. The motivation for the perpetrator's behavior is to assume the sick role by proxy.

3. External incentives for the behavior, such as economic gain, avoiding legal responsibility, or improving physical well-being, are absent.

Facts

The defendant, Dr. Barbara Minkowitz, moves this court for an order requiring the plaintiff, Annette Nash, to provide a Health Insurance Portability Accountability Act (HIPAA) compliant authorizations for defendants to obtain Annette Nash's psychiatric records and that she appear for a psychiatric independent medical examination. The plaintiffs oppose this motion while the remaining defendants do not submit papers in support or opposition to this application.

This medical malpractice action is for recovery from the injuries sustained by the plaintiff William Heines in connection with an orthopaedic surgical procedure performed by Dr. Minkowitz at Staten Island University Hospital on January 6, 1999. Specifically, the plaintiff alleges that the defendant was negligent in performing the tibial osteotomy [FN1] to correct in-toeing of the right leg as the surgery was unnecessary. The complaint also alleges that the defendant was negligent in the actual performance of the surgery in that she failed to properly diagnose and treat a post-operative infection. At the time this action was commenced the plaintiff, William Heines, was a minor and the plaintiff, Annette Nash, his mother, was named as his representative to bring the action on his behalf. The only claim brought on behalf of Annette Nash individually was for loss of services of her son and any potential economic damages that she may have sustained for her son's medical treatment.

The movant asserts a theory that the behavior and psychiatric profile of Annette Nash played a major role in the creation of William Heines' medical history and complaints through a pattern of exaggerating, feigning and/or inducing many of his medical signs and symptoms, seeking unneeded and/or unwarranted medical evaluation and treatment for him and interfering with his appropriate medical evaluation and treatment. The basis of this theory is the attestation of Jane I. Epstein, M.D. Dr. Epstein is a Board Certified Psychiatrist who is the Associate Director of the Division of Neuropsychiatry for Clinical and Education Programs, as well as the Associate [*3]Director of the Neurology-Psychiatry Combined Residency Program at The Weill Medical College of Cornell University/New York Presbyterian Hospital. She is also an Associate Professor of Clinical Psychiatry and an Associate Attending Psychiatrist at The Weill Medical College of Cornell University/New York Presbyterian Hospital.

Dr. Epstein reviewed the plaintiff's Bill of Particulars, the Staten Island University Hospital medical records for William Heines' admission of January 6, 1999 and February 1, 1999, as well as the deposition transcripts of various witnesses in this case. Additionally, Dr. Epstein reviewed the medical records of Dr. Katherine Teets Grimm of the Children's Community Mental Health Center, Dr. Laszlo Papp of Beth Israel Medical Center, as well as the Hospital for Joint Diseases, NYU Medical Center, St. Vincent's Catholic Medical Center and Long Island College Hospital. Dr. Epstein concluded that the behavior and psychiatric profile of Annette Nash played a major role in the creation of William Heines' medical history. Specifically, Dr. Epstein concludes that "from an initial review of the records and testimony in this case, I believe that a thorough examination of Annette Nash's role is important. An interview of Ms. Nash and a review of her psychiatric records would be useful in this regard."

A review of William Heines' post surgical medical treatment is helpful at this point. On December 9, 1999, approximately 11 months after the initial tibial osteotomy William Heines was seen by Dr. James Tucci and Dr. Saul Magitsky at Beth Israel Medical Center. Dr. Tucci evaluated William for RSD post osteotomy and notes that the patient is with his mother "who is the historian - poor." Dr. Magitsky's note states "from ortho perspective pt is stable, bone well healed, no evidence of infection or RSD."

On January 13, 2000, William Heines was seen once again at Beth Israel Medical Center by Dr. Tucci and Dr. Magitsky. The notes prepared state that William Heines was brought in by his mother for another evaluation and that the x-ray shows a well healed "dist tib osteotomy without evidence of infection."

On January 20, 2000 the note reads that:

"mother once again insistent that doctors are covering up what's wrong with her son. Goes on to describe having been seen by orthopedists at Mt. Sinai and St. Vincent's. That doctors told her others are lying to her etc... Describes unheard of medical conditions oscar myer' that her son has. At times it is difficult to understand her because of her pressured speech and refusal to listen to examiner's answers to her questions. Describes her own findings that legs circumferences are greatly different (NOT Substantiated)."

The x-ray shows a "well healing osteotomy and no sign of infection." The plan the doctors took was "to make doubly sure we will obtain an MRI of right tib fib to r/o osteo." Additionally, the mother's concern of swelling is noted, but there is no evidence of swelling as seen by Dr. Tucci. On January 27, 2000 there was a follow up after leg bone evaluation and MRI evaluation. The MRI of the left leg is negative and no orthopaedic pathology was found responsible for the patient's reported symptoms of episodic pain. [*4]

On March 30, 2000, William Heines was seen once again at Beth Israel by Drs. Tucci and Magitsky for a follow up. The note states that "all of our w/u labs/xrays/MRI etc... has yielded NO source for his alleged Sx."

On April 3, 2000, the note states that "Today the mother returns again with child claiming that there is episodic swelling (which is NOT present today) of which she has pictures but she has not developed." Dr. Magistsky also notes on this date that the patient "categorically refuses to follow up even once with the operative surgeon at Staten Island University Hospital."

William Heines was then treated at the New York University Medical Center, Hospital for Joint Diseases Orthopaedic Institute by Dr. Gail Chorney. On June 6, 2000, Dr. Chorney notes that the patient "returns today with three phase and indium bone scan performed May 24/25 2000. Results show normal indium and three phase. No evidence of active osteomyelitis. Mom and Child continue to report intermittent swelling of distal R leg that is not present today. Mother appears to be very agitated and upset." In the plan section of the computerized note printout, it states that "Mother is requesting a liver and head cat scan' as she is worried that the infection in the leg is spreading throughout his body.'"

On June 26, 2000, William Heines presented at Beth Israel Health Care System and was seen by Niloufar Gidfar, M.D. Noted in the record is that the chief complaint for the child is vertigo and diarrhea. Additionally, it states that the mother is concerned about the child spitting up "pieces of clay" and that the child is still in pain and that there was bone infection on MRI /bone scan. On physical examination, Dr. Gidfar notes that there is zero evidence of edema or pain on exam of ankle. Additionally, Dr. Gidfar states that the mother was "very adamant" in requesting a liver scan, "which writer declined!"

The next day on June 27, 2006, William Heines was brought back to NYU and Dr. Chorney, who stated in her notes that the MRI was signed out to Dr. Pappogallo, but was negative by the report. The bone scan was negative by the report and the x-ray was without evidence of infection. Dr. Chorney's impression was that there is "no evidence of infection, mother insists on convincing patient that he has infection in spite of no clinical, radiographic or labo."

At this visit, Carrie Catapano, CSW, a Certified Social Worker was present during the examination by NYU's pediatric orthopaedic team. Ms. Catapano states in her "Social Work Progress Note" that Ms. Nash was belligerent with the staff before, during and after the exam. Specifically, Ms. Catapano wrote "She is convinced that William is suffering from a bone infection. The doctors repeatedly explained that all of his tests are negative and there is no evidence of a bone infection. Ms. Nash repeatedly stated that William knows that all doctors are liars and he knows not to trust them. Ms. Nash did not allow William to speak by speaking for him. The doctors repeatedly told William that he does not have a bone infection. Ms. Nash told William not to believe the doctors; they are lying to him. Throughout these interactions, William cried. The more Ms. Nash spoke, the harder William cried." Dr. Chorney stopped the exam when Ms. Nash became very abusive, began to yell and point her fingers at the staff. Ms. Nash [*5]was asked to leave and security escorted her out.

Ms. Catapano, the CSW, intervened in this matter by calling The Administration for Children's Services (ACS) to investigate for emotional abuse and medical neglect. She recommended that ACS contact William's therapist as it was imperative that they know that he did not have a bone infection and are aware of the mother's interactions with William at the Hospital for Joint Diseases.

On October 18, 2000, William Heines was once again at the Hospital for Joint Diseases. A nursing progress note recounts an incident where Ms. Nash was upset with the staff with regard to a request for her son's medical records. She accused the nurses of lying and trying to hide her son's medical records. Ms. Nash demanded to see the administrator and told a nurse practitioner not to go near her son.

Once again, on December 14, 2000, William Heines was seen at Beth Israel Medical Center by Dr. Gidfar. Dr. Gidfar's progress note states that "Mother continues to insist that child has serious health issues. Concerned about infection of the bone' and cause of seizures' and abnormal heart condition and that she is extremely negative about doctors who hide the truth from her and Billy." It further states that "she wants the child admitted to have fluid taken out of the back.' Writer acknowledged her concerns - advised mother to seek help at institution with more developed adolescent and subspecialty services like Mt. Sinai, after which mother became extremely agitated - stated that only laughed at Billy at Mt. Sinai' and threatened to go to administration. During this conversation, teen appeared subdued and got up and closed the office door." Dr. Gidfar also stated that he and Fran Silverman agreed to pursue an ACS report citing emotional distress and educational neglect.

The pediatric progress form from the same visit with Dr. Gidfar states that "mother, who was very agitated and incoherent, wants child to be admitted because of multiple complaints." It states that the mother is taking pictures of the child's body to document illnesses. Furthermore, the note records that the child sleeps all night but the "mom holds vigil." Additionally, it notes that William is home schooled because, "mom states teen is always afraid that something is wrong with him."

On August 20, 2001 and August 24, 2001, William was seen by Dr. Laszlo Papp, a Board Certified Psychiatrist. Dr. Papp's records indicate that a child psychiatrist was asked to evaluate William Heines for Munchausen Syndrome By Proxy.

Dr. Papp's records indicate that Ms. Nash exhibits inappropriate behavior with emotional outbursts, threats, and accusations, all the while she obstructs the accessibility of William's medical information. The note states that Ms. Nash refused to be evaluated by psychiatry to assess appropriateness in supervision of William. Dr. Papp then referred this case to ACS strongly recommending that ACS thoroughly investigate Ms. Nash and William Heines' situation [*6]to ensure compliance with prescribed medical treatment and recommendations. Additionally, Dr. Papp recommended that ACS conduct a psychiatric evaluation of Ms. Nash and William Heines to delineate the motives and possible contributing factors to William's frequent hospitalizations and Ms. Nash's behavior.

Decision

The Appellate Division, Second Department, as well as the Family Court, have recognized Munchausen Syndrome By Proxy as a "condition in which a child becomes ill because of his parent's desire for attention, manifested by his parent's persistent insistence that he is ill." (Straton v. Orange County Dept. of Social Services 217 AD2d 576 [2d Dept 1995]; In re Jessica Z 135 Misc 520 [NY Fam. Ct. 1987).

In this case the defendant, Dr. Minkowitz, is seeking to compel the authorizations for the psychiatric records of the plaintiff-mother, Annette Nash, and a psychiatric examination of her. The plaintiffs oppose this motion arguing that Ms. Nash's claims are derivative and for the loss of services of her son, as well as for any economic damages that she may sustain for her son's medical treatment. Moreover, the plaintiffs argue that there is no claim in the complaint for any physical, psychological or psychiatric injuries and therefore her medical or psychiatric condition is not in issue and is privileged (Dillenbeck v. Hess 73 NY2d 278 [1989]).

The plaintiff's argument, however, is faulty in that the potential psychiatric profile of Ms. Nash does not go toward the mother's claims, but rather towards William's. Her psychiatric profile is relevant to this case as it may prove or disprove that Ms. Nash aided in creating William's medical history through a pattern of exaggeration, augmentation, feigning, and/or inducing many of the medical signs and symptoms. In this case, Ms. Nash's psychiatric profile may be so inextricably intertwined with the care and treatment rendered to William Heines that her psychiatric/medical condition is in question and therefore, the defendants are entitled to full disclosure regarding any psychiatric or psychological treatment she may have received. (Koump v. Smith 25 NY2d 287 [1969]; Ellerin v. Bentley's 266 AD2d 259 [2d Dept 1999]; St. Claire v. Cattani 128 AD2d 766 [2d Dept 1987].)

The defendants seek HIPAA authorizations for the release of psychiatric medical records. The plaintiff's counsel argues that the information sought by the authorizations is privileged. However, Ms. Nash waived this privilege on two separate occasions. The first on March 18, 2003 when Ms. Nash signed authorizations releasing "complete copies of medical/psychiatric file" from Lucy Kolloori, Ph.D., at the South Beach Psychiatric Center, 777 Seaview Avenue, Staten Island, New York. The second waiver of her psychiatric medical privilege occurred at Ms. Nash's deposition wherein she testifies that she is under the care of a psychiatrist at the Staten Island University Hospital outpatient psychiatric services. Ms. Nash testified about her diagnosis and the medication that she was prescribed and taking as of the date of her deposition.

Additionally, Ms. Nash testified at her deposition that in addition to the psychiatrist, she is also seeing a counselor, who is also located at the South Beach Psychiatric Center. She testified that [*7]her counselor recommended that she see a psychiatrist because she was depressed and was "feeling setbacks, what happened to Billy and to me." Furthermore, Ms. Nash testified that she has called her counselor to cancel the appointments specifically stating, "I call her and tell her my son is not feeling good or he has to go to another appointment. I have to cancel and have to reschedule." In this action, Ms. Nash, by previously signing authorizations for the psychiatric records, as well as testifying as to her diagnosis and treatment by her psychiatrist at her deposition, effectively waived her privilege, thus making those records discoverable. Therefore, the defendant's motion for additional HIPAA compliant authorizations for the release of Ms. Nash's psychiatric records is likewise warranted in this action.

This court finds that the defendant has presented more than a mere probable cause to believe that the plaintiff, Annette Nash, has Munchausen Syndrome By Proxy, that has materially affected the cause of her son's medical treatment, which is relevant in this case. This is no fishing expedition on the part of the defendant.

Accordingly, it is hereby:

ORDERED, that the defendants' motion to compel HIPAA authorizations for Annette Nash's psychiatric, psychological, and social worker treatment records is granted, to the extent that the defendant is to prepare and serve a Notice of Discovery and Inspection for the psychiatric, psychological and social worker records pursuant to this order within 20 days of notice of entry, whereby the plaintiff shall have 20 days to execute and return HIPAA compliant authorizations for same to the relevant parties and institutions. Such records shall be delivered to Justice Joseph J. Maltese at the Homeport Court House located at 355 Front Street, Staten Island, New York 10304, for an in camera inspection to ascertain whether they are relevant to this case. If such psychiatric, psychological, and social worker records are relevant, this court may thereafter disclose them to the defendant; and it is further

ORDERED, that the defendant's motion to compel the plaintiff, Annette Nash, to appear for a psychiatric independent medical examination is reserved at this time for further determination by this court after it examines the psychiatric, psychological, and social worker records of Annette Nash in camera; and it is further

ORDERED, that the note of issue and certificate of readiness in this action is hereby stricken; and it is further

ORDERED, that all parties shall appear in DCM 3 at 9:30 AM on Monday, January 22, 2007 for a status conference.

ENTER, [*8]

DATED:December 13, 2006

Joseph J. Maltese

Justice of the Supreme Court Footnotes

Footnote 1: Cutting of the tibial bone in the leg (Steadman's Medical Dictionary, 26th Ed., pp. 1271 and 1813.)