Foley v Samaritan Hosp.

[*1] Foley v Samaritan Hosp. 2006 NY Slip Op 50213(U) [11 Misc 3d 1055(A)] Decided on February 3, 2006 Supreme Court, Rensselaer County Ceresia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2006
Supreme Court, Rensselaer County

Rose Foley as Executrix of the Estate of Elizabeth Goebel, Plaintiff,

against

Samaritan Hospital, Defendant.



211765



Powers & Santola, LLP

Attorneys For Plaintiff

39 North Pearl Street

Albany, New York 12207

Thuillez, Ford, Gold, Johnson & Butler, LLP

Attorney For Defendant

20 Corporate Woods Boulevard, 6th Floor

Albany, NY 12211

George B. Ceresia, J.

Plaintiff's decedent, Elizabeth Goebel, was allegedly brought to the defendant's emergency room on the evening of January 7, 2003 suffering from severe abdominal pain. It is indicated that by 3:36 a.m. of the next morning she had died. Plaintiff alleges that during this time the nursing staff recorded significant drops in Ms. Goebel's blood [*2]pressure, but that they failed to inform anyone about this. Plaintiff also asserts that a CT scan performed on Ms. Goebel, and read by defendant's staff radiologist, revealed that she was suffering from a sigmoid volvulus (a twisted bowel). According to plaintiff's counsel, a radiologist who was on duty that evening at the defendant Hospital testified at a pre-trial deposition that he informed defendant's emergency department physician about the sigmoid volvulus on the evening of January 7, 2003. The emergency department physician has testified that he was not so informed. Plaintiff indicates that at some point after 11:30 p.m. Ms. Goebel was placed in bed 14 in a back room for "hold" patients (patients who are admitted to the hospital but, due to bed shortages or nursing shortages, must remain temporarily in the emergency room). The hold room allegedly contained two other beds, bed 13 and bed 15. Plaintiff has served discovery demands upon defendant seeking the names and addresses of the patients in beds 13 and 15 on the evening of January 7, 2003 and early morning of January 8, 2003. Defendant has taken the position that the information is privileged and may not be disclosed

Plaintiff has made a motion to compel the defendant to produce the names and addresses of the patients in bed 13 and bed 15 on the evening of January 7, 2003. Plaintiff also seeks an order compelling a response to its Third Notice for Discovery and Inspection dated August 26, 2005 [FN1]. Defendant has made a motion pursuant to CPLR § 3103 for a protective order. Defendant maintains that disclosure of the names and addresses of other patients would violate the federal Health Insurance Portability and Accountability Act ("HIPAA")[FN2]. Defendant also asserts that such disclosure would violate the physician-patient privilege; that defendant does not have the means of identifying the patients in beds 13 and 15; that the request is unduly burdensome; and that such information is not material and necessary to plaintiff's case.

The CPLR directs that there be "full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406). "This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" (Spectrum Sys. v Chemical Bank, 78 NY2d 371, 376 [1991]). The information requested need not be shown to be indispensable, but rather must only be "needful" and sufficiently related to the subject matter of the action to be reasonable (see, Allen v Crowell-Collier Publ. Co. supra, pp. 406, 407; Goldberg v. Blue Cross of Northeastern New York, 81 AD2d 995, 996 [Third [*3]Dept., 1981]). The basic test is one of usefulness and reason (id.). The party resisting disclosure has the burden of establishing that the information sought is privileged or not otherwise subject to disclosure (see, CPLR 3103 [b]); see also, Bloss v. Ford Motor Co., 126 AD2d 804, 805; Zimmerman v. Nassau Hosp., 76 AD2d 921; Brahm v. Hatch, 169 AD2d 263 [Third Dept., 1991]).

Notably, "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 * * * provided that the requesting party is not seeking to identify the patient by reference to the medical treatment he [or she] received * * * and revelation of the patient's location in the hospital does not reveal the patient's medical status" (Rabinowitz v St. John's Episcopal Church, ___ AD3d ___ [2nd Dept., December 12, 2005], citing Hirsch v Catholic Medical Center of Brooklyn and Queens, Inc., 91 AD2d 1033, at 1034 [2nd Dept., 1983], other citations and quotation omitted). In Rabinowitz (supra) the Appellate Division found that in view of the broad range of services provided, and medical conditions treated, at the defendant hospital's emergency room, the information requested did not fall within the protections of CPLR 4504 (a) (see id.). By way of contrast, in Gunn v Sound Shore Medical Center of Westchester (5 AD3d 435 [2nd Dept., 2004]), disclosure of the identity of patients being treated in defendant's Cardiac Rehabilitation Center was barred by reason that it would necessarily reveal that such patients were undergoing treatment for cardiac-related conditions.

In this instance, it does not appear that disclosure of the identity of the patients in the defendant's emergency room who were roommates of plaintiff's decedent on the evening in question would reveal their medical status. The Court therefore discerns no impediment to the requested disclosure under State law.

With respect to defendant's arguments concerning HIPAA, as pointed out in Rogers v NYU Hospitals Center (8 Misc 3d 730 [Sup Ct, NY County, 2005]), HIPAA does not prohibit the disclosure of a patient's name under circumstances similar to those present here. HIPAA (specifically, 42 USC § 1320d-6) precludes a party from doing the following: using or causing to use a [patient's] unique health identifier; obtaining individually identifiable health information relating to an individual; or disclosing individually identifiable health information to another party (see 42 USC § 1320d-6). Under 42 USC § 1320d (6), the term "individually identifiable health information" is defined as: "any information, including demographic information collected from an individual, that"(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and[*4]"(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and(i) identifies the individual; or(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual." (see 42 USC § 3020d [6]).

Disclosure of the names and addresses of other patients under the circumstances present here would not reveal their "individually identifiable health information". The Court finds that disclosure of the identity of plaintiff's decedent's roommates would not violate HIPAA (see Rogers v NYU Hospitals Center, supra).

With regard to defendant's argument that the requested disclosure is unduly burdensome, defendant maintains that it will be necessary to review the medical records of 98 patients who presented at the defendant's emergency room on the day in question. Defendant asserts that it would be necessary to examine each and every page of each and every chart to determine if such information existed. Defendant also indicates that when patients are moved from one part of the emergency room to the other, their bed location is not recorded. Plaintiff, in response, points out that a review of defendant's redacted emergency department log for January 7, 2003 reveals that only 15 patients were admitted to the Hospital on that day. The log also indicates what time each patient arrived at the hospital, and when they were admitted. The Court finds this information sufficiently narrows the number of patients who could have been placed within the same hold room as plaintiff's decedent to a manageable number.

With regard to defendant's argument that the instant application is untimely, the Court is of the view that defendant has failed to demonstrate how or in what respect it would be prejudiced by the disclosure. The Court further finds that the instant application, while certainly made at a late stage of the action, is not so untimely as to preclude the grant of the relief requested.

Defendant, as a part of its motion, has requested permission to contact any patients who are discovered to have been in the room of plaintiff's decedent on the evening in question to explain to them the circumstances under which their names were released to plaintiff's counsel. In addition, defendant requests (if the application is granted) that the order contain the following recital: "(i) That plaintiffs are prohibited from using or disclosing the protected health information for any purpose other than this litigation; (2) That plaintiffs are required to either return or destroy the protected health information at [*5]the end of the litigation".

The Court discerns no basis, statutory or otherwise, for ruling upon defendant's request that it be permitted to contact its patients to explain to them the circumstances under which their names were released to the plaintiff. Moreover, the specifics with regard to the proposed communication have not been disclosed.

With respect to the request for an order directed to the plaintiff to preserve the confidentiality of protected health information, inasmuch as the Court is not directing that the health information of any patient be disclosed, the Court finds that there is no reason or need for the requested directive.

The Court concludes that plaintiff's motion should be granted and defendant's motion should be denied.

Accordingly, it is

ORDERED, that plaintiff's motion is granted; and it is further

ORDERED, that defendant's motion is denied; and it is further

ORDERED, that defendant is required, within twenty (20) days, to serve plaintiff with the names and addresses of patients who were present in the hold room in defendant's emergency room during the same period of time when plaintiff's decedent was there, on the evening of January 7, 2003 and morning of January 8, 2003; and it is further

ORDERED, that within twenty (20) days, defendant comply with plaintiff's third notice for discovery and inspection dated August 26, 2005.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the plaintiff, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated: February , 2006

Troy, New York

______________________________________

George B. Ceresia, Jr.

Supreme Court Justice [*6]

Papers Considered: Plaintiff's Notice of Motion dated November 30, 2005, Supporting Papers and ExhibitsAffirmation of Patrick J. Higgins, Esq., dated November 30, 2005Defendant's Notice of Motion dated December 22, 2005, Supporting Papers and ExhibitsAffidavit of Paul Milton, sworn to December 21, 2005 and ExhibitAffirmation of Patrick J. Higgins, Esq., dated November 30, 2005, filed January 6, 2006 Footnotes

Footnote 1:The defendant does not oppose this portion of the motion and indicates that it is in the process of preparing responses to the demand. The Court will therefore direct that the responses be served within twenty (20) days.

Footnote 2:See 42 USC §§ 1320d et seq.