Verponi v City of New York

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[*1] Verponi v City of New York 2007 NY Slip Op 51293(U) [16 Misc 3d 1105(A)] Decided on June 25, 2007 Supreme Court, Kings County Partnow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2007
Supreme Court, Kings County

Adelaide Verponi, Plaintiff,


City of New York, et ano., Defendants.


The plaintiff was represented by:

Sonkin, Fifer & Gershon

1350 Broadway - Ste 2500

NY, NY 10018

The defendant City of New York was represented by:

Corporation Counsel

350 Jay Street

Brooklyn, NY 11201

The defendant Visiting Nurse Service was represented by:Rosenblum, Newfield LLC

50 Main Street

White Plains, N 10606

Mark I. Partnow, J.

Upon the foregoing papers, defendants Visiting Nurse Service of New York Home Care, Inc. s/h/a The Visiting Nurse Service of New York, Inc. (VNS) and Paula Gittens (collectively the VNS defendants or defendants) move, pursuant to CPLR 3124 and 3126, for an order compelling plaintiff Adelaide Verponi to provide authorizations permitting Mt. Sinai Hospital to release any protected medical information it may possess with respect to Beatrice Verponi, plaintiff's mother, on the ground that plaintiff has placed her mother's medical condition in controversy in the instant action.[FN1] Plaintiff opposes the motion on the [*2]ground that she does not have legal authority to authorize the release of her mother's privileged medical records.[FN2]

In the instant action, plaintiff seeks damages for injuries she allegedly sustained as a result of, inter alia, an alleged assault, battery and false imprisonment by New York City police officers. In the complaint, plaintiff avers that the subject incident occurred after Paula Gittens, a nurse employed by VNS who was retained to care for plaintiff's mother, improperly summoned an ambulance to plaintiff's residence to transport plaintiff's mother to a hospital. Plaintiff alleges that after the ambulance arrived, she was "improperly, unjustifiably, unlawfully and illegally grabbed, pushed, shoved, dragged, handcuffed, strapped to a stretcher and unlawfully detained" by the police officers. Based upon such alleged misconduct by defendants, plaintiff asserts causes of action sounding in both intentional tort and negligence. Plaintiff's mother is not a party to the action and the complaint does not state that she suffered damages as a result of the defendants' alleged misconduct.

On or about October 18, 2004, the VNS defendants served combined demands on plaintiff which sought, in part, authorizations directed to each physician, hospital clinic or other healthcare facility in which plaintiff's mother " is or was treated or confined due to the occurrence set forth in the complaint" and also served a specific demand for authorizations to obtain all medical records pertaining to plaintiff's mother with respect to several different physicians and health care facilities. On or about April 15, 2005, plaintiff served a response to the demand for authorizations which stated that such demands were palpably improper as they sought "privileged information of an individual not a party to this lawsuit."

In support of their instant motion to compel production of the subject authorizations, the VNS defendants argue that plaintiff's mother's medical condition has been placed into controversy by plaintiff due to her claim, allegedly contained in the complaint, that "[Emergency Medical Services (EMS) intervention was not medically indicated for her mother's care." The VNS defendants also argue that because plaintiff was her mother's health care agent for the purpose of making all health care decisions for her that plaintiff also has legal standing to authorize the release of her medical records in this action. In opposition, plaintiff maintains that she does not have legal authority to authorize the release of her mother's privileged medical records.

The court finds that the VNS defendants are not entitled to an order compelling production of the authorizations they seek with respect to plaintiff's mother's medical condition and treatment. As an initial matter, the VNS defendants have misconstrued the gravamen of plaintiff's complaint. Although denominated by defendants as "a medical [*3]malpractice case," the instant action contains no allegations of malpractice with respect to the medical care received by plaintiff's mother. To the contrary, plaintiff's mother is not even a party to the action. Nor is it alleged that plaintiff's mother sustained any damages as a result of defendants' alleged misconduct. Moreover, plaintiff, in her role as health care agent for her mother, would be precluded from recovering any damages she allegedly sustained as the result of medical malpractice which occurred during the course of her mother's medical care (see DeCintio v Lawrence Hosp., 299 AD2d 165, 166 [2002], lv dismissed in part, denied in part 100 NY2d 549 [2003]). In any event, the plaintiff herein limits her claim for damages to injuries she alleges resulted from the negligence and intentionally tortious actions of defendants which were, in part, allegedly precipitated by the VNS defendants' refusal to comply with the instructions of plaintiff and plaintiff's mother's physician.

Most importantly, and in stark contrast to the defendants' contentions otherwise, the complaint is entirely bereft of any allegations whatsoever as to plaintiff's mother's medical condition. Indeed, the only allegation contained in the complaint with respect to the actions of the VNS defendants is as follows:

That on or about March 4, 2003, defendant Paula Gittens, acting within the scope of her employment and/or agency for defendant [VNS], improperly summoned an ambulance by and through defendant "EMS" to the plaintiff's residence to transport plaintiff's mother . . . to a hospital contrary to the express instructions of [plaintiff's mother's] physician and of plaintiff . . . who was the duly appointed agent to make any and all health care decision[s] for [her mother] [emphasis added].

Accordingly, the complaint does not allege that the VNS defendants acted improperly in summoning the ambulance because medical intervention was not indicated, but rather avers, without any reference to plaintiff's mother's medical condition, that the defendants' actions violated directives given to them with respect to plaintiff's mother's hospitalization by both her physician and the plaintiff acting as her health care agent.

It is well settled that "[a] competent adult may appoint a health care agent in accordance with the terms of [Public Health Law § 2981]" (PHL § 2981 [1][a]). A "health care agent" is defined as "an adult to whom authority to make health care decisions is delegated under a health care proxy" (PHL § 2980[5]). A " health care decision' means any decision to consent or refuse to consent to health care" (PHL § 2980[6][emphasis added]). The term "health care" encompasses "any treatment, service or procedure to diagnose or treat an individual's physical or mental condition" (PHL § 2980[4]). Accordingly, as codified in Public Health Law § 2982, "[a]n agent shall have the authority to make any and all health care decisions on the principal's behalf that the principal could make" subject to any express limitations contained in the health care proxy itself. In addition, such decision making shall take place "[a]fter consultation with a licensed physician, registered nurse, licensed psychologist, licensed master social worker, or a licensed clinical social worker [and] in accordance with the principal's wishes, including the principal's religious or moral beliefs; [*4]or . . . if the principal's wishes are not reasonably known and cannot with due diligence be ascertained, in accordance with the principal's best interests" (Public Health Law § 2982]). With respect to a patient's right to refuse medical care, "[t]he common law of this State [has] established the right of a competent adult to determine the course of his or her own medical treatment [and] [t]his right has been adopted and preserved by the Legislature [in Public Health Law §§ 2504, 2805-d] (Matter of Fosmire v Nicoleau, 75 NY2d 218, 226 [1990]). Indeed, the New York Court of Appeals has repeatedly "reaffirmed the basic right of a competent adult to refuse treatment even when the treatment may be necessary to preserve the patient's life" (id. [holding that patient had a right to determine the course of her own treatment, which included the right to decline blood transfusions, where there was no showing that the state had a superior interest in preventing her from exercising that right even though she was a young, otherwise healthy individual who potentially risked death due to her declination of treatment]).

With respect to the disclosure of medical records, "it is well established that "[i]nformation concerning medical diagnosis and treatment is privileged [pursuant to CPLR 4504] and may not be disclosed absent a showing that a compelling interest overrides the privilege" (Exelbert v State of New York, 140 AD2d 665, 665 [1988]). However, "[a] litigant will be deemed to have waived the privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue" (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). In addition, the privilege may be waived by the personal representative of a deceased patient, although the privilege is not terminated by death alone (Friedman v Frank, 2007 NY Slip Op. 27184, *2 [2007]). Such waiver can occur, for instance, where the decedent's personal representative places the patient's physical or mental condition in issue such as where the personal representative pursues a claim of medical malpractice or wrongful death with respect to the decedent's medical treatment (id.).

Here, the VNS defendants have not demonstrated that plaintiff has the legal authority to waive the physician/patient privilege on behalf of her mother. As an initial matter, although defendants seem to imply in their papers that plaintiff's mother is now deceased, such is not pled in the complaint and defendants have failed to proffer any evidence, other than a conclusory attorney affirmation, with respect to plaintiff's mother's alleged death and, relatedly, plaintiff's purported status as the personal representative of her estate. Nor is there any evidence that plaintiff ever possessed power of attorney or guardianship powers with respect to her mother. In addition, although Public Health Law § 2982 (3) vests a health care agent with the right to receive medical information and the medical and clinical records of his or her principal for the limited purpose of making informed decisions regarding the principal's health care, such provision does not state that the health care agent also has the right to waive the physician/patient privilege of the principal vis-a-vis third parties. Similarly, although Public Health Law § 18 also provides access to medical records to "qualified persons" such as guardians or distributees of a patient, it does not otherwise establish an independent right on the part of such "qualified person" to waive the [*5]physician/patient privilege in regard to such information. Accordingly, as the VNS defendants have failed to establish that plaintiff has the legal authority to waive the physician/patient privilege with respect to the medical records of a nonparty, her mother, their request for an order compelling the provision to them of authorizations from plaintiff for such records must be denied.

Moreover, even if plaintiff was legally authorized to waive said privilege, the VNS defendants have nonetheless failed to demonstrate that such privilege was actually waived due to plaintiff's placement of her mother's medical condition into controversy. The only evidence upon which the claim of waiver is based are the conclusory assertions contained in an attorney affirmation submitted in support of said motion wherein counsel for the VNS defendants states that the instant action is one for "medical malpractice" and further contends that the complaint contains allegations that the emergency medical assistance allegedly requested by the VNS defendants for plaintiff's mother was not medically indicated. As previously noted, however, no such allegations are contained in the complaint which, in any event, sounds in negligence and intentional tort, not medical malpractice or wrongful death, and only seeks damages with respect to injuries allegedly sustained by the plaintiff.[FN3]

With respect to the materiality and relevance of the medical information sought, the court also notes that the only allegation levied against the VNS defendants in the complaint is that they "improperly summoned an ambulance by and through defendant "EMS" to the plaintiff's residence to transport plaintiff's mother . . . to a hospital contrary to the express instructions of [plaintiff's mother's] physician and of plaintiff . . . who was the duly appointed agent to make any and all health care decision[s] for [her mother]." Accordingly, based upon such pleading, issues such as the scope of the subject health care proxy, the VNS defendants' awareness of said proxy, the level of competency of plaintiff's mother prior to the alleged incident and any determinations issued with regard to same (see PHL § 2983 [establishing procedure for determination that the principal lacks capacity to make health care decisions]), as well as aspects of plaintiff's decision making process in her role as health care agent (i.e. compliance with the requirements of PHL § 2982[2]) and the nature of her instructions and directives to the VNS defendants with respect to her mother, may arguably be material and relevant to the reasonableness, or lack thereof, of the VNS defendants' actions or the foreseeability of harm to plaintiff. The court cannot similarly determine, however, on the [*6]record before it, that the relevance of the medical condition of plaintiff's mother, a nonparty who is not seeking damages based upon the defendants' alleged misconduct, has been established to the extent that discovery with respect to same constitutes a compelling interest sufficient to override the physician/patient privilege (see Exelbert, 140 AD2d at 665).

As a result, the motion of the VNS defendants to compel plaintiff to provide authorizations for her mother's medical records is denied in its entirety. The court notes, however, that such denial is without prejudice to renewal in the event that evidence emerges during discovery which supports defendants' contentions that a compelling interest exists for such disclosure and/or the physician/patient privilege has been validly, and with proper authority, waived by plaintiff.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: The court notes that while the instant motion appears to seek authorizations with respect to medical records allegedly located at Mt. Sinai Hospital, the requests for authorizations attached to the moving papers does not refer to said hospital, but rather seeks an authorization for Maimonides Hospital.

Footnote 2: A cross motion by plaintiff seeking to compel production of Civilian Complaint Review Board (CCRB) records was resolved by order of this court dated November 14, 2006, pursuant to which the City of New York defendants provided such records to the court (Hinds-Radix, J.) for in camera inspection.

Footnote 3: The VNS defendants also contend that the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., authorizes health care providers to release health care information without patient consent in judicial proceedings upon court order. However, they do not cite any authority for the proposition that such order shall issue automatically upon motion by the party seeking such information without any consideration of the relevant state law on physician/patient privilege or that HIPAA has preempted the substantive state law concerning the standards for disclosure of privileged information, i.e. the well settled rule that the privilege is waived where a party affirmatively places his or her medical condition in controversy.