Hally v Steres

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Hally v Steres 2009 NY Slip Op 33343(U) June 22, 2009 Supreme Court, Ulser County Docket Number: 07-4421 Judge: Christopher E. Cahill Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] .. .. STATE OF NEW YORK SJJPBJMI( COJJBT MISTY HALLY, Individlldy ud ¢ Panat and Natllral Gardiu of DAKODA HALLY, an infant, Plaintiffs, Deeisioa A Order/ lnde:s: No.: 07-4421 -agai®DAVID A. STERES, M.D., KRISTINA J. HEITZMAN, R.P.A., THE KINGSTON HOSPITAL, PINE STREET PEDIATRIC ASSOCIATES, P.C., JANE B. FERGUSON, M.D. ud NALINI NAUTH-OTELW, M.D., Defendants. Supreme Court. Ulster County Motion Return Date: April 22, 2009 RJI No. 55-08-00424 J_~ JUN t 12009 Praeat: Cbriltopler E. CHUI, JSC Appearances: Powers & Smttola, LLP Attorneys for Plaintiffs 39 North Pearl Street Albany, New York 12207-2785 By: John H. Fisher, Esq. The Law Offices of Sholes & Miller, LLPJ Attorneys for Defendants Stere!J and The Kingston Hospital 327 Mill Street, PO Box 4609 Poughkeepsie, New York 12602 By: Denise M. Fi1ZPatrick, Esq. Phelan, Phelan & Danek, LLP Attorneys for Defendant Hei1znlan 302 Wasliingtoo Avenue Ext. Albany, New York 12203 By: Syma S. Az.am, Esq. l [* 2] The Law Offices of Steinberg, Symer & Platt. LLP Attorneys for Defendants Pine Street, Ferguson and Nautb-Otello 27 Garden Street Poughkeepsie, New York 12601 By: Ellen Fischer Bopp, Esq. Cahill, J.: Plaintiff commenced this action alleging medical malpractice. As here relevant, it is contended that between December 2004 and April 2005, the infant plain@: Dakoda Hally, presented to defendants, on repmed occasions, with various symptoms which should have triggered diagnostic testing such as a CT or MRI of the brain. After the infant plaintiff was diagnosed with a brain tumor in January 2006, requiring emergency surgery and extensive follow-up treatment, the infant plaintiff's mother, Misty Hally, commenced the instant action alleging that due to the am, or the failure to act, the infant plaintiff's injuries resulted in extensive cognitive and physical difficulties. A judicial subpoena dvces tecum was issued to the U1ster Crnmty Depmtn1cnt of Social Services (hereinafter "DSSj for all files and reconls regarding the infant plaintiff, limited only to information fOIDld in indicated reports. Quite apptopriately, DSS produced such reconls dilectly to the Court. Contending that there has been no formal proceeding commenced against plaintiff in Family Court or any other court where the issues raised by a DSS investigation were detennined to be substantiated, plaintiffs sought an order prohibiting defendants ftom. inter alia, cYJUDining or cross-examining 2 [* 3] any witness with respect to any issue Illised in these records as they relate to either the infant plaintiff or plaintiff. Relying upon Social Services Law § 422, n:ganling reports and any other information obtained as a result of a report of child abuse or maltreatment, as well as Social Services Law§ 372. relating to all records and reports maintained by the Department of Social Services n:ganling families either investigated or under their care, plaintiffs contend that the records sought an: required. by statute, to be confidential. Plaintiffs argue that if the Court were to permit defendants access to these records, it would highly prejudice the pr me cution of this action and would distract the jury ftom the only real issue which is defendants' alleged negligence in filling to test or diagnose the infant plaintiff's brain tmnor. Counsel for all defendants, odler than The Kingston Hospital and David Steres, M.D., opposed plaintiffs' motion on numerous grounds which included the claim that under Social Services Law§ 372 (3). the records can be released if they an: subject to the provisions of Article 31 of the Civil Practice Law and Rules and under Social Services Law § 422, "upon a finding that the information in the record is necess8I)' for the detennination of an issue before the court." Noting th-e decision in Catherine C. y Albany County Dept of Socia) Servirn (38 AD3d 959 [2007)). defendants state that the Court disallowed the disclosure ofDSS records in that case because the trial court failed to make a clear determination of their necessity and because the necessary parties were not 3 [* 4] given notice of the application for disclosure. 1 Further citing plaintiffs' responses to the bill of particulars, as well as concerns expressed by the lack of follow-up trtatment with regard to the infant plaintiff by the infant's medical providers. defendants contend that the DSS records may, in fact, have information which is material, relevant and nec:essary to the defense in this matter. Finally contending that plaintiffs' have clearly waived the physician-patient privilege regarding all aspects of the infant plaintiff's medical condition by the filing of this action, defendants propose, as an a!temative to denial, that the DSS records either already produced or sought to be produced by an additional judicial subpoena duca tecum submitted in connection with this motion be directly produced to the Court for an iD f..!ll!l9l'll inspection. In light of the claims by plaintillS in connection with this action, this Court will order, under Social Services Law § 422 (4) (A) (e), to have the records sought produced for an ill gpnqa inspection so that a determinatioo can be made as to whether the information contained therein is necessary for the determination of an issue before the Court. It is only in this manner can a clear determination of necessity be made ~ Mqjne C. y Albtny Coun\Y Dept. of Social Services. 38 AD3d at 960). This 'The croas-motioo seeks a court-ordered subpoem dllce& tecwn din:cted to DSS for the production of the reconls of alild Plotectivc Services as it perlllins to the infant painrift; bis mother, as well as the infant plaintiff's &lher, Matthew J. Hally, due to his criminal history which includes a conviction of Endangering the Welfan: of a Child, Aggravated Harassment, and numerous other offWJSCS since such history mises the issue of whether the infant plaintiff: for whom serious and permanent brain injuries, as well as other permanent injuries, me claimed in this action, has been the subject of physical abuse or neglect. 4 [* 5] determination is based upon the showing made by defendants as to not only the injuries claimed by plaintiffs which resulted from this alleged malpraetice but also because of the infant plaintiff's father's criminal history and the problems with follow-up care noted by the infant plaintiff's treating physiciBDS Cs pnm!ly Fmwvkz y Riyerstone A!!!!9£,, 6 Misc3d 1019 [A] [Civil Ct, Kinp County 2005]). Should a determination of relevance be made after aniaCllll!m review, notice will be provided to "all interested persons" (Social Services Law § 372 [4] [a]), including parents or guardians of any alleged llOD-party infant witnesses identified in the records so that an opportunity can be provided to have these persons participate in a hearing for the purpose of determining the extent of the disclosure. It is only after such steps have been completed will the Court determine which of those records, if any, shall have the confidentiality mandated by § 372 (4) and § 136 (2) of the Social Services Law yield to the right of these defendants Cs Peoj)!e y McFMt!m 178 Misc2d 343, 346 [Sup Ct, Monroe County 1998), lftil 283 AD2d 1030 [4* Dept 2001]). The subpoena duces tecum to DSS seeking all records in their possession cooa:rning Child Protcc:tivc Services' investigation of the plaintiffs or information reported to Child Protective Services pertaining to plaintiffs Misty Hally and Dakoda Hally shall be signed and returned herewith for service. This shall constitute the decision and order of the Court, the original of which is being returned to Sholes cl Miller, I.LP for filing. The signing of this decision and order shall not constitute entty or filing under CPLR 2220. Counsel are not relieved from the s [* 6] .. provisions of that ftlle regarding filing, entry and notice of entry. SO ORDERED. Dated: Kingston. New York June~,2009 Papers considered: Order to Show Caused dated March 16, 2009 with Affinnation of John H. Fisher, Esq., dated March 16, 2009 with exhibits; Affinnation in Opposition of Ellen Fischer Bopp, Esq., dated April 13, 2009; Affidavit in Opposition of Syma S. A7JllD, Esq., dated April 10, 2009 with exhibits; Notice of Cross-Motion dated April 10, 2009 with Affirmation of Denise M. FitzJ>atrick, Esq., dated April I0, 2009 with exhibits; Affirmlltion in Opposition of John H. Fisher, Esq., dated April 22, 2009. 6

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