Averso v North Shore Univ. Hosp. Manhasset
Annotate this CaseDecided on June 29, 2018
Supreme Court, Nassau County
Joseph M. Averso, As Executor of the Estate of DEBORAH ANN ARTZT, Deceased, and JOSEPH M. AVERSO, As Sole Custodian of B and H, Infants Under the Age of Sixteen (16), Plaintiffs,
against
North Shore University Hospital Manhasset; NORTH SHORE (LIJ) LONG ISLAND JEWISH MEDICAL CENTER, a division of NORTH SHORE (LIJ) HEALTH SYSTEM; NORTH SHORE (LIJ) MEDICAL GROUP; NORTH SHORE (LIJ) CANCER INSTITUTE, a division of NORTH SHORE (LIJ) MEDICAL GROUP; DR. CHARLES C. CONTE, M.D., F.A.C.S.; DR. JUAN MADARIAGA, M.D., Ph.D.; and "JOHN DOE AND JANE DOE No.1-100 said names being fictitious, it being the intent of Plaintiffs to designate any and all officers, members, agents, servants and/or employees of the aforementioned agencies owing a duty of care to Plaintiffs, Defendants.
10043/15
ATTORNEY FOR PLAINTIFF
SILBERSTEIN, AWAD & MIKLOS, P.C.
600 Old Country Road
Garden City, N.Y., 11530
Tel. 516-832-7777
ATTORNEY FOR DEFENDANT DR. CHARLES C. CONTE
CONNICK MYERS HAAS & MCNAMEE
114 Old Country Road
Mineola, N.Y. 11501
Tel. 516-873-3900
ATTORNEY FOR DEFENDANTS NORTH SHORE UNIVERSITY HOSPITAL -MANHASSET, NORTH SHORE (LIJ) LONG ISLAND JEWISH MEDICAL CENTER, a division of NORTH SHORE (LIJ) HEALTH SYSTEM, NORHT SHORE (LIJ) MEDICAL GROUP, NORTH SHORE (LIJ) CANCER INSTITUTE, a division of NORHT SHORE (LIJ) MEDICAL GROUP, AND DR. JUAN MADARIAGA,M.D., Ph.D
BARTLETT, LLP
170 Old Country Road
Mineola, N. Y. 11501
516-877-2900
Antonio I. Brandveen, J.
The following papers having been read on this motion:
Notice of Motion, Affidavits, & Exhibits 1, 2, 3
Answering Affidavits 4
Replying Affidavits 5, 6
Briefs: Plaintiff's / Petitioner's
Defendant's / Respondent's
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motions by the respective parties raise an issue of apparent first impression regarding the disclosure of infants' educational and mental health records as they pertain to the loss of parental guidance, is decided as follows:
Defendant, Dr. Charles C. Conte, M.D., F.A.C.S. moves (Sequence #001) for an order pursuant to CPLR 3126 precluding the plaintiff from offering evidence at the time of trial with regard to the claims of loss of parental guidance and loss of enjoyment of life. Dr. Conte also moves (Sequence #001) for an order pursuant to CPLR 3124 compelling the plaintiff to respond to the defendants' demands seeking information for the infant plaintiffs' school and therapy records.
Defendants North Shore University Hospital Manhasset; North Shore (LIJ) Long Island Jewish Medical Center, a division of North Shore (LIJ) Health System; North Shore (LIJ) Medical Group; North Shore (LIJ) Cancer Institute, a division of North Shore [*2](LIJ) Medical Group and Dr. Juan Madariaga, M.D., Ph.D., cross-move (Sequence #002) for an order pursuant to CPLR 3126 precluding the plaintiff from offering evidence at the time of trial with regard to the claims of loss of parental guidance and loss of enjoyment of life. The defendants, North Shore University Hospital Manhasset; North Shore (LIJ) Long Island Jewish Medical Center, a division of North Shore (LIJ) Health System; North Shore (LIJ) Medical Group; North Shore (LIJ) Cancer Institute, a division of North Shore (LIJ) Medical Group and Dr. Juan Madariaga, M.D., Ph.D., also cross-move (Sequence #002) for an order pursuant to CPLR 3124 compelling the plaintiff to respond to the defendants' demands seeking authorizations for the infant plaintiffs' school and therapy/mental health records.
The plaintiff cross-moves (Sequence #003) for an order pursuant to CPLR 3101 in regards to the school and therapy/mental health records of the distributees. The plaintiff asserts the defendants are not entitled to the distributees' school and therapy/mental health records based upon a claim of parental guidance. The plaintiff requests that there be an in camera review of the records as the school and therapy/mental health records may contain privilege or confidential information which is not subject to discovery.
The underlying medical malpractice action arose from the plaintiff's claims that the defendants negligently performed a liver resection on the decedent, Deborah Ann Artzt, the mother of the two infant plaintiff children.. The complaint and the bill of particulars contained claims of loss of parental guidance and loss of enjoyment of life regarding the two infant children. However, the plaintiff's attorney states, in an affirmation, that the plaintiff withdraws any claim for the loss of enjoyment of life. The plaintiff asserts that the law only provides for actual pecuniary damages in a wrongful death claim which includes loss of parental guidance, so no damages may be awarded for the distributees' grief or emotional loss. The plaintiff contends the emotional state and mental health of the infant minors are not issues in this action, and the defendants failed to show otherwise, so the mental hygiene law protects the school and therapy/mental health records of the distributees, and the Court should issue a protective order.
Dr. Conte replies to the plaintiff's opposition. While Dr. Conte agrees with the plaintiff's contention that in a wrongful death action recoverable damages including loss of parental guidance are pecuniary, the plaintiff fails to provide any support for the claim that because damages are pecuniary the infant minors' school and therapy/mental health records are not discoverable. Dr. Conte points out that the determination of the economic value in a wrongful death action requires consideration as a factor the intellectual, moral and physical training, guidance and assistance that the decedent provided the children had Deborah Ann Artzt lived. Dr. Conte contends the infant minors' school and therapy/mental health records are material and relevant to the issue of loss of parental guidance.
The plaintiff replies to the defendants' opposition, and in further support of the plaintiff's cross motion. The plaintiff reiterates assertions of fact and law, and the [*3]plaintiff's request an in camera review of the school and therapy/mental health records. The plaintiff adds the defendants failed to provide any authority which supports the discovery of the school and therapy/mental health records in the context of the claim of the loss of parental guidance.
There are no appellate cases directly on point.
CPLR 3101(a) provides: "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." Here, the defendants satisfy their burden of showing their discovery demands for infant minors' school and therapy/mental health records are reasonably calculated to generate information which will assist in preparation for trial by sharpening the issues and reducing delay and prolixity (Forman v. Henkin, 30 NY3d 656, 93 N.E.3d 882 [2018]).
"For a protective order to be issued, the party seeking such an order must make a 'factual showing of 'unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice.' " "Trial courts are vested with broad discretion to issue appropriate protective orders to limit discovery . . . [T]his discretion is to be exercised with the competing interests of the parties and the truth-finding goal of the discovery process in mind" [citations omitted]Cascardo v. Cascardo, 136 AD3d 729, 729—30, 24 N.Y.S.3d 742, 743 [2d Dept. 2016].
In opposition, the plaintiff fails to proffer a factual showing of unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. Moreover, the plaintiff fails to show that the defendants' requests for the infant minors' school and therapy/mental health records are not useful or unreasonable (Yoshida v. Hsueh-Chih Chin, 111 AD3d 704, 974 N.Y.S.2d 580 [2d Dept. 2013]). However, the plaintiff contends that the infant minors' school and therapy/mental health records may contain privilege or confidential information which is not subject to discovery.
Consequently, the Court will conduct an in camera inspection of the infant minors' school and therapy/mental health records. The defense request for authorizations is decided within the context of this decision for an in camera inspection of the infant minors' school and therapy/mental health records. Accordingly, it is
ORDERED that the branch of the motion by Dr. Charles C. Conte, M.D., F.A.C.S.(Sequence #001) is GRANTED to preclude the plaintiff from offering evidence at the time of trial with regard to the claims of loss of parental guidance and loss of enjoyment of life, unless the plaintiff provides this Supreme Court, County of Nassau with the school and therapy/mental health records for in camera inspection within 30 days after service of a copy of this order with notice of entry, and it is also,
ORDERED that the branch of the motion by Dr. Charles C. Conte, M.D., F.A.C.S. (Sequence #001) is GRANTED directing the plaintiff to provide this Supreme Court, County of Nassau with the school and therapy/mental health records for in camera inspection within 30 days after service of a copy of this order with notice of entry, and it is also,
ORDERED that the branch of the cross motion by North Shore University Hospital Manhasset; North Shore (LIJ) Long Island Jewish Medical Center, a division of North Shore (LIJ) Health System; North Shore (LIJ) Medical Group; North Shore (LIJ) Cancer Institute, a division of North Shore (LIJ) Medical Group and Dr. Juan Madariaga, M.D., Ph.D. (Sequence #002) is GRANTED to preclude the plaintiff from offering evidence at the time of trial with regard to the claims of loss of parental guidance and loss of enjoyment of life unless the plaintiff provides this Supreme Court, County of Nassau with the school and therapy/mental health records for in camera inspection within 30 days after service of a copy of this order with notice of entry, and it is also,
ORDERED that the branch of the cross motion by North Shore University Hospital Manhasset; North Shore (LIJ) Long Island Jewish Medical Center, a division of North Shore (LIJ) Health System; North Shore (LIJ) Medical Group; North Shore (LIJ) Cancer Institute, a division of North Shore (LIJ) Medical Group and Dr. Juan Madariaga, M.D., Ph.D. (Sequence #002) is GRANTED directing the plaintiff to provide this Supreme Court, County of Nassau with the school and therapy/mental health records for in camera inspection within 30 days after service of a copy of this order with notice of entry, and it is further,
ORDERED that the cross motion by the plaintiff (Sequence #003) is DENIED in all respects.
This decision will constitute the decision and order of the Court. All applications not specifically addressed are denied.
Dated: June 29, 2018
E N T E R:
______________________________
J. S. C.
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