CLAIRE BEAUGARD MASSARO v. GREGORY J. MASSARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5453-04T15453-04T1

CLAIRE BEAUGARD MASSARO,

Plaintiff-Appellant,

v.

GREGORY J. MASSARO,

Defendant-Respondent.

________________________________________________________________

 

Submitted January 23, 2006 - Decided February 17, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2772-97.

Anthony A. Kress, attorney for appellant.

Guston & Guston, attorneys for respondent (Debra E. Guston, of counsel; Karen N. Grayson-Rodgers, on the brief).

PER CURIAM

Plaintiff, Claire Beaugard Massaro, appeals paragraphs two and three of the Family Part's May 4, 2005 order denying her cross-motion to compel defendant, Gregory J. Massaro, to provide her with his relevant medical and/or psychiatric records, as may be required for the future medical care and/or treatment of the parties' children, Joan Marie, age thirteen and Michael Anthony, age ten. We affirm.

The parties were divorced by judgment entered March 31, 1998. The parties' two minor children reside with plaintiff. Defendant filed a post-judgment notice of motion to terminate his child support obligation since a disability benefit awarded to the children from the Social Security Administration exceeded what the children were receiving under the child support guidelines. The motion was unopposed.

Plaintiff filed a cross-motion seeking to compel defendant to provide her with authorizations for the release of his medical and/or psychiatric records for use in the medical care and/or treatment of the parties' children should health problems arise. Plaintiff's certification in support of her cross-motion asserted that defendant, on November 26, 2004, advised her that he had been diagnosed with a number of mental disorders. They included split personality, multiple personalities, bi-polar disorder, schizophrenia, and obsessive compulsive personality disorder.

Defendant opposed plaintiff's request for his medical records on the basis that the request was an unreasonable invasion of his personal privacy rights since he had never before been asked by any of the children's physicians for any information pertinent to the treatment of the children. Defendant did, however, in his certification in opposition, indicate a willingness to cooperate with any doctor treating his children.

Judge Austin's order in applicable part denied plaintiff's request for release of defendant's medical records to her or to the children's doctors but provided for the potential future release of defendant's past or current medical information concerning his physical or mental health to a physician, psychologist or other medical professional treating the parties' children. The May 4, 2005 order in applicable part reads:

2. Plaintiff has stated that it may be necessary in the future for the Defendant's confidential medical records to be disclosed in order to properly treat the parties' children. Defendant Gregory J. Massaro, shall cooperate with any treating physicians, psychologists, or other medical professional treating any of the parties' children in the event that they require past or current medical information concerning Defendant's physical or mental health. The request must be in writing, indicating what is needed and why. The Defendant shall have two (2) weeks to provide copies at the Plaintiff's expense to the requesting medical professional. The medical professional shall be and is hereby restrained from discussing any of the Defendant's medical history and disclosures with any third parties other than other medical professionals involved in the care of the child or children. The medical professional shall not discuss Defendant's records with the Plaintiff without first obtaining Defendant's written consent or the Defendant is present during such conversation and consents thereto.

3. In the event Defendant wishes to provide medical information voluntarily to the treating physicians of his children, the medical professionals shall be and are hereby restrained from disclosing such information to Plaintiff unless imminent medical issues arise and express consent of the Defendant is impracticable.

4. Plaintiff shall be and is hereby restrained from discussing any of the Defendant's medical records she may gain knowledge of or access to with any person other than a medical professional treating the parties' child or children and the Defendant.

Plaintiff presents the following argument for our consideration:

THE BEST INTERESTS OF THE CHILD REQUIRE THAT A DIVORCED SPOUSE (WITH ADMITTED SERIOUS MEDICAL/PSYCHIATRIC DISORDERS) EXECUTE MEDICAL AUTHORIZATIONS FOR THE PRODUCTION OF RELEVANT MEDICAL RECORDS FOR USE BY HIS CHILDREN'S MEDICAL PROFESSIONALS IN THE EVENT THAT SUCH RECORDS BECOME NECESSARY TO THE FUTURE DIAGNOSIS AND/OR TREATMENT OF THE CHILDREN'S MEDICAL PROBLEMS.

Plaintiff contends the court's order constitutes an abuse of the judge's discretion because it ignores completely the possibilities that: (1) defendant might leave the jurisdiction and might not be able to be found; (2) he might refuse to cooperate, which would require her to bring time consuming legal proceedings when time might be "of the essence;" and (3) defendant might become disabled and unable to cooperate so as to require plaintiff to bring further time consuming legal proceedings to have a guardian appointed to execute authorizations on his behalf. Plaintiff claims that without the children having immediate access to defendant's medical records, their health may suffer or become endangered and under such circumstances, the "best interests of the children" test clearly outweighs defendant's privacy concerns.

The only credible evidence submitted by plaintiff to support her request for release of defendant's records is the February 8, 2005 two-sentence letter from the children's pediatrician, Dr. Arnold Rabinowitz, which states: "Pertinent family history is an integral part of any patient's medical record. The information obtained is often essential and aids the physician caring for the pediatric patient."

Dr. Rabinowitz' letter does not opine, however, that the specific medical history of defendant is medically necessary for the current treatment of the children. Plaintiff provided no evidence in support of her cross-motion that either child has manifested symptoms requiring a review of defendant's history or that their pediatrician or any other medical provider has a concern for either child's physical or mental health, warranting the immediate release of defendant's confidential records.

The patient-physician privilege contained in N.J.R.E. 506 is codified at N.J.S.A. 2A:84A-22.1 to -22.7. N.J.S.A. 2A:84A-22.2 provides that

[a] person, whether or not a party, has a privilege in a civil action . . . to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that (a) the communication was a confidential communication between patient and physician, and (b) the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis of the condition of the patient or to prescribe or render treatment therefor, and (c) the witness (i) is the holder of the privilege or (ii) at the time of the communication was the physician or a person to whom disclosure was made because reasonably necessary for the transmission of the communication or for the accomplishment of the purpose for which it was transmitted . . . .

The privilege "has a strong tradition in New Jersey[,]" and "the privacy right on which [it] is based has been held to a level warranting constitutional protection." Estate of Behringer v. The Med. Ctr. at Princeton, 249 N.J. Super. 597, 632 (Law Div. 1991). Even prior to the enactment of the statutory privileges, doctors were ethically restrained by the Oath of Hippocrates from violating the privacy of their patients by disclosing confidential information in the absence of legal compulsion. See State v. Schreiber, 122 N.J. 579, 586-88 (1991). However, even without legal compulsion, Hague v. Williams, 37 N.J. 328 (1962), held that information concerning a patient's medical condition could be disclosed to someone having a legitimate interest in the subject, where "the physical condition of the patient is made an element of a claim." Id. at 336. Stempler v. Speidell, 100 N.J. 368 (1985), amplified the limitation of the privilege in a medical malpractice wrongful death action where the defendants sought the right to interview the decedent's physicians ex parte with respect to matters relating to the litigation. The Court permitted the defense the right to conduct such an interview subject to specific safeguards outlined in the opinion, because the decedent's representatives had placed decedent's medical condition in issue by virtue of filing a wrongful death law suit, thereby creating a waiver of some of decedent's privacy privilege. The Court, however, reiterated the interests of the patient that are advanced by the privilege. They are to protect from disclosure by the physician confidential information not relevant to the litigation, including the securing of the physician's loyalty to the patient. Id. at 381-83.

Plaintiff cites Smith v. American Home Products Corp. Wyeth-Ayerst Pharmaceutical, 372 N.J. Super. 105 (Law Div. 2003), in support of her contention that Judge Austin abused his discretion in denying the release of defendant's records to her or to the children's physicians. In Smith, the defendant argued that the plaintiff had placed her medical condition in issue by virtue of filing a personal injury lawsuit, thereby creating a waiver of some of her privacy privilege. Id. at 112. Although the court recognized this possible waiver, it denied the defendant the right to conduct ex parte interviews with the plaintiff's doctors relating to the disclosure of "[p]sychotherapy notes or medical records containing patient health information irrelevant to the litigated medical condition . . . ." Id. at 135.

In the motion before Judge Austin, there was neither a lawsuit filed by defendant placing in issue his medical condition nor any information sought by plaintiff that was relevant to the need for an evidentiary hearing. Defendant, in opposing plaintiff's cross-motion, was not asking for relief based on an assertion that he has a mental illness, which would make his medical records pertinent to the controversy. Therefore, defendant has not waived his rights in the manner described in Stempler or Smith.

As with the patient-physician privilege outlined in N.J.S.A. 2A:84A-22.2, the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 1320(d), likewise supports defendant's privacy protection claim. As referred to in Smith, Congress in the HIPAA has expressed a strong policy position designed to insure a patient's privacy protection of his medical records. Ibid.

Plaintiff argues, however, that the "best interests of the children" trumps the privacy rights of parents. Plaintiff cites Sacharow v. Sacharow, 177 N.J. 62 (2003). In Sacharow, the custodial mother in a post-divorce proceeding involving visitation rights of the father wanted her address concealed from the children's father. The Court remanded to the trial court to decide if this was truly in the best interest of the children. Id. at 83. The present case differs from that case, which dealt with issues of custody and visitation and the protective purposes of the Address Confidentiality Act, N.J.S.A. 47:4-1 to -6. Id. at 67.

We are satisfied that there was no evidence before the court indicating a present medical need or even a future medical need for the disclosure of defendant's confidential records. Therefore, there was no evidence of a present impact on the children by non-disclosure. The order entered by Judge Austin protects the children, should the need arise, and thereby does consider the best interests of the children without unnecessarily infringing upon defendant's right to privacy. Because there was an absence of a present diagnosis of a medical condition of one of the children, which would indicate a need for the immediate disclosure of defendant's records, there was no showing by plaintiff of a present need for defendant's medical records. Although plaintiff suggests it to be advantageous to obtain advanced authorizations from defendant in the event he is unavailable or medically incapacitated, there was no present justification before Judge Austin from which to conclude that defendant would fail to cooperate when and if the records become necessary. If such a contingency were to occur, plaintiff could seek a revised order based on "changed circumstances." Lepis v. Lepis, 83 N.J. 139, 151 (1980).

 
We are satisfied that Judge Austin's order carefully addressing the potential in futuro need for defendant's medical records, should they become necessary for the medical treatment of the parties' children, while protecting at the same time defendant's statutorily protected privacy rights, was clearly a proper exercise of his discretion. See Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Affirmed.

(continued)

(continued)

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A-5453-04T1

February 17, 2006