Smith v New York Socy. for the Deaf
Decided on February 3, 2010
Supreme Court, New York County
Michael H. Smith, as Guardian Ad Litem of L.H., and B.R., Plaintiffs,
New York Society for the Deaf, JOEL ZIEV, and PEARL JOHNSON, Defendants.
For the Plaintiffs:
Law Offices of Alan J. Rich, LLC
26 Court Street, Suite 1801
Brooklyn NY 11242
For the Defendants:
Garfunkel, Wild & Travis, P.C.
By: Roy W. Breitenbach, Esq.
Kevin G. Donoghue, Esq.
Robert A. Del Giorno, Esqs.
111 Great Neck Road
Great Neck NY 11021
Paul G. Feinman, J.
By order dated July 16, 2009, the court partially granted the motion by defendant Federation Employment and Guidance Service, Inc. ("FEGS"), the successor to the New York Society for the Deaf ("NYSD"), seeking a protective order pursuant to CPLR 3103, concerning documents which are the subject of a subpoena duces tecum dated February 15, 2008.[FN1] These [*2]documents consist of the records of deaf and mentally or emotionally disabled residents who lived at the "individual residential alternative" (IRA) maintained by defendants during the same time frame as plaintiff L.H. Plaintiff L.H., who is deaf and developmentally disabled, was a resident at the facility from April 1995 to November 1996. It is alleged that in July 1996, she was sexually assaulted by a facility employee on the premises. The complaint alleges, among other things, failure to properly supervise the staff, negligent care of L.H., and discrimination based on plaintiff's disabilities under the New York City Administrative Code and the Executive Law. Plaintiffs argue that the records are relevant to the claims that defendants' actions were discriminatory as against L.H. based on her disability.
In its previous decision, the court denied the branch of plaintiffs' motion to compel
production of the records of the other residents, and granted defendants' motion for a protective
order to the extent that defendants were directed to produce the documents and a privilege log
for an in camera review by the court (see CPLR 3122 [a], [b]). Defendants
timely complied with the directive by producing four banker's boxes of documents, with a
62-page privilege log containing entries for 226 documents, consisting of almost 9000 pages.
The court has now completed a thorough and careful review of these documents.
The July 16, 2009 decision and order held that plaintiffs offered some persuasive argument for their need for at least a limited access to these records in order to establish a claim that defendants in essence took advantage of L.H.'s disability, which included an inability to articulate her needs or fears about her living situation, when they placed her in the same facility as individuals with much graver disabilities, more violent behaviors, and more limited potential. Plaintiffs contend that the medical records of the other patients at the facility would reveal that L.H. functions at a higher level than the other residents and that the types of support and care provided by the facility were not sufficient or adequate for her particular needs. Plaintiffs claim that the facility was inappropriate for her, and that because she lacks sufficient ability to express herself or complain, she was subjected to objectionable and potentially violent conduct in an environment that, as described by plaintiff's counsel in his affirmation of May 9, 2009, attached to his previous order to show cause, was "out-of-control, unregulated," and "unsafe" (OSC Rich Aff. at 6-7). Defendants, on the other hand, argue that the entire records of the residents living in the particular facility during the same time as L.H., from April 1995 to November 1996, encompass documents earlier and later than her residency and are not relevant, and above all are confidential under Mental Hygiene Law § 33.13.
Mental Health Law § 33.13 requires facilities licensed or operated by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities to maintain a clinical record for each patient "on all matters relating to the admission, legal status, care, and treatment" (Mental Hygiene Law § 33.13 [a]). This information is strictly confidential and facilities are prohibited from releasing such records to any person outside the agency save for [*3]certain enumerated exceptions (see Mental Hygiene Law § 33.13 [c] -). One such exception is "upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality" (Mental Hygiene Law § 33.13 [c] ). To determine whether such records should be produced, a court may order an in camera review and consider whether the information sought can "be adequately fulfilled" by other means (see Sohan v Long Is. Coll. Hosp., 282 AD2d 597, 598 [2d Dept 2001]; Smith v State of NY, 181 AD2d 227, 231 [3d Dept 1992]).
Plaintiffs argue that there is no method to acquire the comparative information other than through the clinical files. They note that defendant Ziev, the facility's former executive director, admitted during his deposition, for instance, that one of the residents, "Y," showed violent and inappropriate behavior but that he nonetheless believed that both "Y" and L.H. were appropriately placed in the same residence (Rich Aff. in Opp. to FEGS Mot. p. 4).
A review of the documents reveals that, when balanced against the confidentiality provisions of the statute, the vast majority should not be turned over. Records for four residents have been produced. Most are neither relevant nor useful to plaintiffs' claims. Plaintiffs are not persuasive that reports or other materials that were created after L.H. left the IRA are relevant to their claims, with one exception. The records for "AC" consist of clinical records dated a decade later; there are almost no records from 1995-1996, although one document notes that AC was admitted to the IRA in about January 1995 (FEGS 001299). For this one individual, the court directs that what appears to be the oldest evaluation report, dated June 2004, be produced as a general comparative aid. As to the other three residents, the court has limited production of reports and records to those which are dated no later than 1996.
However, evaluative information about the initial condition of residents when admitted to the program, even if made prior to April 1995, is of relevance to the claims that L.H. was placed in an inappropriate living situation, in particular that the other residents were known to be of lower functioning than she and to exhibit violent or sexualized or other inappropriate behaviors. Thus, the court directs that certain documents, enumerated below, which describe the mental, emotional and intellectual condition of the residents, be produced. To the extent that plaintiffs seek to show that 911 was never called in an emergency, that there was no reporting to state and local law enforcement of dangerous or criminal activities, that there were no evaluations as to whether residents were capable of consenting to sexual activity, or that the residents were over-medicated, there are no documents produced that establish such claims.
This court will limit the scope of disclosure "to that information necessary in light of the reason for disclosure" (Mental Health Law § 33.13 [f] [emphasis added]) by imposing "appropriate safeguards" to ensure compliance with the statute's policy, which is to preserve confidential psychiatric information (Heard v Cuomo, 142 AD2d 537, 539 [1st Dept 1988]; see Matter of New York News [Ventura], 67 NY2d 472, 476 ). Defendants argue that the individual residents should be notified and offered an opportunity to be heard regarding the production of their health information (Non-Party FEGS' Objections to Production, pp. 3, 4 n. 4); however, such notification is not required under Mental Health Law § 33.13 (c) (1).
FEGS shall produce the following documents after redacting "any information tending to identify any patient" (Heard v Cuomo, 160 AD2d 590, 591 [1st Dept 1990]; see Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 462 ). In addition to the residents' names, [*4]for which FEGS has already substituted initials in its privilege log, FEGS should redact any photographs, dates of birth, former addresses, identifiers such as social security or medicare numbers, and indications of race, ethnicity, nationality, or religious affiliation. In addition, the disclosure should be limited to comments and observations or diagnoses about the particular resident's physical, psychological, and mental condition, the ability to communicate, and to comments concerning sexuality and sexual conduct, as well as any propensity for violence or other disruptive behavior, whether such behavior is directed toward the staff or other residents or peers (see, Office of Mental Retardation and Developmental Disabilities v Maestracci, 77 AD2d 473 [4th Dept. 1980]). Plaintiff's attorney is directed to hold the documents in strictest confidence, and not to copy, share, or distribute the documents to anyone other than an expert witness who may be directly involved in the litigation. It is
ORDERED that, within 20 days of notice of entry of this order, Federation Employment and
Guidance Service, Inc. shall provide plaintiffs's attorney with the following documents, redacted
pursuant to the guidelines set forth above, bearing the following Bates Stamp numbers:
As to resident "JD": 000003, 000004, 000015, 000016, 000025, 000026, 000039, 000040, 000041, 000042, 000043, 000107, 000108, 000109, 000110, 000116, 000117, 000118, 000119, 000120, 000121, 000122, 000123, 000124, 000125, 000126, 000127, 000128, 000129, 000130, 000131, 000212, 000213, 000214, 000215, 000216, 000217, 000287, 000301, 000302, 000303, 000304, 000379, 000434, 000561, 000579, 000621.
As to resident "AC": 001299, 001301, 001302, 001306, 001307, 001309, 001310, 001321, 001322, 001323, 001324, 001860, 001861, 001862, 001863.
As to resident "YK": 002488, 002492, 002509, 002527, 002535, 002543, 002634, 002637, 002640, 002641, 002660, 002668, 002671, 002672, 002697, 002698, 002692, 002775, 002860, 002861, 002862, 003535, 003536, 003537, 003538, 003539, 003540, 003541, 003631, 003632, 003633, 003634, 003635, 003714, 003715, 003716, 003717, 003718, 003719, 003720, 003721, 003722, 003723, 003724, 003725, 003729, 003730, 003824, 003842, 003851, 003969, 003970.
As to resident "NG": 007208, 007223, 007920, 007921, 007938, 007939, 007940, 007941, 007942, 007943, 007944, 007945, 007946, 007947, 007948, 007955, 007956, 007957, 007958, 007959, 007960, 007961, 007962, 007963, 007964, 007965, 007966, 008035, 008036, 008037, 008038, 008039, 008040, 008041, 008042, 008278, 008285, 008287, 008298, 008690, 008691, 008692, 008693, 008694, 008695, 008696, 008697, 008698, 008699, 008700, 008701, 008702, 008703, 008704, 008705, 008706, 008707, 008708, 008709, 008710, 008711, 008712.
The attorneys for FEGS are directed to contact the Part Clerk, Michael Kasper, at 646-386-3273, to arrange for retrieval of the four boxes of documents. [FN2] It is further
ORDERED that all other discovery is to be completed not later than March 10, 2010, and that plaintiffs shall file their note of issue no later than March 30, 2010. Dispositive motions are [*5]to be filed within 60 days of filing the Note of Issue, as per the Part 12 Rules. These deadlines will be strictly enforced given the extraordinary delay that this surrounded getting this action trial ready.
This constitutes the decision and order of the court.
Dated: February 3, 2010____________________________________
New York, New YorkJ.S.C.
Footnote 1: The February 15, 2008, subpoena duces tecum directed FEGS to produce the "complete file [now in FEGS's custody] of all persons who resideded [sic] from April 1995 to November 1996 (not including the file of L.H.) at the New York Society Individual Residential Alternative (IRA) at 174 Forsyth Street, New York, New York" (Mot. Ex. D, Subpoena). It was directed that "[c]ounsel for plaintiffs shall maintain the identity of all such persons confidential in compliance with HIPAA" (id.).
Footnote 2: The documents that are to be redacted and produced have been bundled together in Box 2.