Matter of Richmond Univ. Med. Ctr.

[*1] Matter of Richmond Univ. Med. Ctr. 2008 NY Slip Op 50146(U) [18 Misc 3d 1120(A)] Decided on January 23, 2008 Supreme Court, Richmond County Collini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 23, 2008
Supreme Court, Richmond County

In the Matter of the Application of Richmond University Medical Center pursuant to CPLR 2304 to Quash a Subpoena Duces Tecum dated December 14, 2007 issued by Richmond County District Attorney's Office.



080414/07



For The Respondent:

Hon. Daniel M. Donovan, Jr.

District Attorney of Richmond County

By: Adam Silberlight, Esq.

Assistant District Attorney

Of Counsel

For The Movant:

Richmond University Medical Center

By: The Sipp Law Firm

John P. Sipp, Jr.

Of Counsel

Robert J. Collini, J.

Upon consideration of the application [FN1] of Richmond University Medical Center (movant/ hospital) for an order pursuant to CPLR 2304 to quash a Grand Jury Subpoena Duces Tecum [*2](hereinafter "subpoena"), dated December 14, 2007, the application is granted in part, without costs, in that the subpoena is modified to the extent specified as follows:

The subpoena purports to compel information from patients' medical records, reading in pertinent part, "The contact information of anyone treated for slashes or cuts to the body that came to your hospital between October 31, 2007 at 11:00 P.M. and November 1, 2007 at noon."

The facts in this case are distinguishable from Grand Jury Investigation in NY County, 98 NY2d 525 (2002) (records of male patients, within a specified age range, treated for "a laceration, puncture wound or slash, or other injury caused by or possibly caused by a cutting instrument and/or sharp object") and Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130 (1983) (subpoena seeking "stab wounds or other wounds caused by a knife").

Unlike the aforesaid two cases, the subpoena in the instant matter does not (absent a possibility that is negated by the Court's modification below) "require a medical determination in order to furnish a response" (People v. Greene, 36 AD3d 219, 227 [1st Dept 2006], affd 9 NY3d 277 [2007]). In other words, if the injury is "conspicuous to the average layperson" (People v. Greene, 36 AD3d at 226), then the physician-patient privilege (CPLR 4504) is not applicable.

While the Court of Appeals affirmed the decision of the First Department in Greene, it expressly did not consider the applicability of the physician-patient privilege and the subpoena under the facts presented. Further, as correctly argued by the People, under the circumstances of the instant case, this Court is bound by the First Department's decision in People v. Greene, supra. See, Mountain View Coach Lines v. Storms, 102 AD2d 663 (2d Dept 1984).

Here, the subpoena could arguably be read to request information that may not be perceived by the average layperson. The Court finds, in its present form, the subpoena could impart evidence of an injury concealed from public view and disclosed - verbally or visually - only in the course of seeking medical treatment.

For instance, while most people do not walk shirtless on a public street, if a patient incurred a laceration to the chest, such may easily be discernable through a tear in the shirt around the chest area with blood emanating therefrom. If a person suffers a laceration to his forearm and is only wearing a short-sleeve shirt, then that injury may also be obvious. Naturally, the aforesaid examples are for illustrative purposes only and are not intended to be an exhaustive account of what constitutes an "injury conspicuous to a layperson."

The Court has carefully considered the hospital's argument set forth in number six of the affidavit of Lora Giacomoni as to a burden on the hospital to search its records for the injuries specified in the subpoena. While the Court recognizes that "[t]he hospital's records are not maintained according to whether the injury was observable by a layperson," in that there is probably no "boilerplate" format in the records that confirms the aforesaid such as a "checkbox," neither does the Court find that an undue burden would be placed on the hospital to review its records for the brief time period set forth below. Those records should reveal the location of the laceration and initial impression of the patient, and depict any torn clothing, patent bleeding (such as a bleeding laceration to the face), and so forth.In any event, the Court finds that any burden placed upon the hospital is outweighed by overriding public policy considerations as the information sought is the only means presently available for the police to continue their investigation into the serious crime(s) that is/ are the subject of this Grand Jury matter.

Accordingly, the subpoena is modified as follows, without costs, and the movant/ hospital is ORDERED to disclose to the Grand Jury, within thirty calendar days from the date of [*3]this order:

The name and contact information of any person treated for any laceration to any part of the body if such laceration would have been conspicuous to the average layperson for the period of 11:00 p.m. on October 31, 2007 through 12 noon on November 1, 2007.

Although rendered academic, the respondent is reminded of the requirements of CPL 190.50 (3), 610.10 (2), (3), which require a "return date" or "a designated date" for which a subpoena shall be returnable.

This constitutes the decision, opinion and order of the Court.

__________________________

Dated: January 23, 2008J. S. C.

Staten Island, New York Footnotes

Footnote 1: Movant commenced these proceedings by Order to Show Cause, issued on December 31, 2007 by The Honorable John A. Fusco, J.S.C. The Court has reviewed the papers submitted by movant hospital and respondent District Attorney of Richmond County. The Court heard oral argument by both parties on January 8, 2008 as to points of fact and law relevant to the decision on the underlying application. Finally, as this is a Grand Jury investigation, and thus confidential in nature (CPL article 190), the Court notes that it has considered the affidavit of the investigating detective and related facts, but will not iterate those facts herein.