On September 14, 2020 a
Motion-Secondary
was filed
involving a dispute between
Nadine Khouzam Chawla As Executrix Of The Estate Of Magda G. Daoud Khouzam,
Nadine Khouzam Chawla
As Executrix Of The Estate Of Magda G. Daoud Khouzam,
and
Finger Lakes Health Foundation, Inc.,
Jane Doe,
Maria Y. Battle-Quidgley Md,
Soldiers & Sailors Memorial Hospital Of Yates County,
Stephanie Achilles Md,
for Torts - Medical, Dental, or Podiatrist Malpractice
in the District Court of Yates County.
Preview
FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/05/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF YATES
MEMORANDUM OF
NADINE KHOUZAM CHAWLA, AS EXECUTRIX
LAW
OF THE ESTATE OF MAGDA G. DAOUD
KHOUZAM,
Plaintiff, Index No.: 2020-5102
vs.
SOLDIER & SAILORS MEMORIAL HOSPITAL
OF YATES COUNTY, FINGER LAKES HEALTH
FOUNDATION, INC., STEPHANIE ACHILLES,
MD, MARIA Y. BATLLE-QUIDGLEY, MD, AND
JANE DOE
Defendants.
PRELIMINARY STATEMENT
This Memorandum of Law is submitted in support of defendant Maria Y. Batlle-
Quidgley, MD's motion for an Order pursuant to Civil Practice Law and Rules Sections
2302(b) and 2304, and 45 CFR 164.512 (e)(1)(i), for a subpoena duces tecum for the
records of defendant Soldiers & Sailors Memorial Hospital of Yates County regarding
treatment of non-party patient Paul Khouzam, upon such conditions to be fixed by the
Court for notice to the non-party patient and with consideration to the interests of
justice pursuant to Mental Hygiene Law Section 33.13(c)(1).
STATEMENT OF FACTS
This action alleging medical malpractice arises as the result of medical care
provided to non-party patient Paul Khouzam at the Soldiers & Sailors Memorial
Hospital of Yates County. The plaintiff alleges that the defendants improperly
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FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102
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released Mr. Khouzam from the emergency department of the hospital on August 5,
2018, purportedly resulting in Mr. Khouzam's assault on his mother, plaintiffs
decedent Magda Daoud Khouzam. Mrs. Daoud Khouzam subsequently died on October
18, 2018.
Plaintiff commenced this action by the filing of a Summons and Complaint with
the Yates County Supreme Court on September 14, 2020. Discovery of the medical
records of the decedent has been obtained, but no discovery of the medical records of
the treatment of non-party Paul Khouzam at issue in the liability claims of the action.
ARGUMENT
A COURT ORDER FOR ACCESS TO THE MEDICAL
RECORDS AT ISSUE IS APPROPRIATE.
Pursuant to 45 CFR 164.512 (e)(1)(i), a HIPAA covered entity may disclose
protected health information in the course of a judicial proceeding in response to a
Court order. Mental Hygiene Law Section 33.13 (c )(1) provides that clinical mental
health records may be disclosed pursuant to a Court order upon a finding that the
interests of justice significantly outweigh the need for confidentiality. Statutory
confidentiality and privilege are not absolute and may be "required to yield to
interests."
countervailing Villano v. State, 127 Misc.2d 761, 762 (Court of Claims,1985).
The interests of justice significantly outweigh confidentiality in this case, where
the plaintiff alleges that the defendants are responsible for the criminal conduct of a
non-party. In City of New York v. Bleuler Psychotherapy Ctr., 181 Misc. 2d 994 (New
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York County, 1999), disclosure of mental health records was ordered in an action
involving a non-party patient who killed a person. The administrative agency seeking
records in that matter was charged with the task of determining "if the treating mental
health providers acted properly in the past, and ...what steps can be taken in the
incidents..."
future to minimize the occurrence of Ibid at p. 997.
The Court in Bleuler found that the interests of justice outweighed the need for
confidentiality. The same interests are raised herein, where the Court or a jury may be
similarly tasked with determining ifhealth care providers acted properly. The
plaintiffs complaint references some access to her brother's records, but the movant
has no such access to defend the allegations against her.
Privacy and notice concerns can be addressed with the fixing of any
conditions that the Court deems necessary pursuant to CPLR Section 2304. In
Bellamy v. State of New York, 136 A.D.3d 1247 (Third Dep't., 2016), the Court noted
that the interests of justice outweighed confidentiality pursuant to Mental Hygiene
Law Section 33.13(c )(1) in a Court of Claims case involving an attack by a psychiatric
center patient. The Court reviewed records in.camera to determine what materials
should be disclosed regarding prior notice of assaultive behavior or withheld as private
diagnostic information.
In the instant action, diagnostic and clinical decisions are at issue, given the
malpractice allegations. However, the final determination as to applicable clinical
records is clearly subject to the Court's in,camera review. The movant requests that the
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plaintiff provide any known information about Paul Khouzam's location, so that any
conditions set by the Court regarding notice can be met.
CONCLUSION
In light of the foregoing, defendant Bat1le-Quidgley respectfully requests that
the Court grant the motion and issue a Court-ordered subpoena duces tecum
Dated: January 5, 2023 OU DIN & THOMPSON, LLP
By: MAR . 1 S ER, ESQ.
Attorney for ndant Batlle-Quidgley
450 Plaza Drive
Vestal, NY 13850
Telephone: (607) 763-9200
Fax: (607) 763-9211
Email: mfowler@lgtlegal.com
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Document Filed Date
January 05, 2023
Case Filing Date
September 14, 2020
Category
Torts - Medical, Dental, or Podiatrist Malpractice
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/05/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF YATES MEMORANDUM OF NADINE KHOUZAM CHAWLA, AS EXECUTRIX LAW OF THE ESTATE OF MAGDA G. DAOUD KHOUZAM, Plaintiff, Index No.: 2020-5102 vs. SOLDIER & SAILORS MEMORIAL HOSPITAL OF YATES COUNTY, FINGER LAKES HEALTH FOUNDATION, INC., STEPHANIE ACHILLES, MD, MARIA Y. BATLLE-QUIDGLEY, MD, AND JANE DOE Defendants. PRELIMINARY STATEMENT This Memorandum of Law is submitted in support of defendant Maria Y. Batlle- Quidgley, MD's motion for an Order pursuant to Civil Practice Law and Rules Sections 2302(b) and 2304, and 45 CFR 164.512 (e)(1)(i), for a subpoena duces tecum for the records of defendant Soldiers & Sailors Memorial Hospital of Yates County regarding treatment of non-party patient Paul Khouzam, upon such conditions to be fixed by the Court for notice to the non-party patient and with consideration to the interests of justice pursuant to Mental Hygiene Law Section 33.13(c)(1). STATEMENT OF FACTS This action alleging medical malpractice arises as the result of medical care provided to non-party patient Paul Khouzam at the Soldiers & Sailors Memorial Hospital of Yates County. The plaintiff alleges that the defendants improperly {L1013556,1} 1 of 4 FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/05/2023 released Mr. Khouzam from the emergency department of the hospital on August 5, 2018, purportedly resulting in Mr. Khouzam's assault on his mother, plaintiffs decedent Magda Daoud Khouzam. Mrs. Daoud Khouzam subsequently died on October 18, 2018. Plaintiff commenced this action by the filing of a Summons and Complaint with the Yates County Supreme Court on September 14, 2020. Discovery of the medical records of the decedent has been obtained, but no discovery of the medical records of the treatment of non-party Paul Khouzam at issue in the liability claims of the action. ARGUMENT A COURT ORDER FOR ACCESS TO THE MEDICAL RECORDS AT ISSUE IS APPROPRIATE. Pursuant to 45 CFR 164.512 (e)(1)(i), a HIPAA covered entity may disclose protected health information in the course of a judicial proceeding in response to a Court order. Mental Hygiene Law Section 33.13 (c )(1) provides that clinical mental health records may be disclosed pursuant to a Court order upon a finding that the interests of justice significantly outweigh the need for confidentiality. Statutory confidentiality and privilege are not absolute and may be "required to yield to interests." countervailing Villano v. State, 127 Misc.2d 761, 762 (Court of Claims,1985). The interests of justice significantly outweigh confidentiality in this case, where the plaintiff alleges that the defendants are responsible for the criminal conduct of a non-party. In City of New York v. Bleuler Psychotherapy Ctr., 181 Misc. 2d 994 (New {L1013556.1} 2 of 4 FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/05/2023 York County, 1999), disclosure of mental health records was ordered in an action involving a non-party patient who killed a person. The administrative agency seeking records in that matter was charged with the task of determining "if the treating mental health providers acted properly in the past, and ...what steps can be taken in the incidents..." future to minimize the occurrence of Ibid at p. 997. The Court in Bleuler found that the interests of justice outweighed the need for confidentiality. The same interests are raised herein, where the Court or a jury may be similarly tasked with determining ifhealth care providers acted properly. The plaintiffs complaint references some access to her brother's records, but the movant has no such access to defend the allegations against her. Privacy and notice concerns can be addressed with the fixing of any conditions that the Court deems necessary pursuant to CPLR Section 2304. In Bellamy v. State of New York, 136 A.D.3d 1247 (Third Dep't., 2016), the Court noted that the interests of justice outweighed confidentiality pursuant to Mental Hygiene Law Section 33.13(c )(1) in a Court of Claims case involving an attack by a psychiatric center patient. The Court reviewed records in.camera to determine what materials should be disclosed regarding prior notice of assaultive behavior or withheld as private diagnostic information. In the instant action, diagnostic and clinical decisions are at issue, given the malpractice allegations. However, the final determination as to applicable clinical records is clearly subject to the Court's in,camera review. The movant requests that the {L1013556.1} 3 of 4 FILED: YATES COUNTY CLERK 01/05/2023 05:21 PM INDEX NO. 2020-5102 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/05/2023 plaintiff provide any known information about Paul Khouzam's location, so that any conditions set by the Court regarding notice can be met. CONCLUSION In light of the foregoing, defendant Bat1le-Quidgley respectfully requests that the Court grant the motion and issue a Court-ordered subpoena duces tecum Dated: January 5, 2023 OU DIN & THOMPSON, LLP By: MAR . 1 S ER, ESQ. Attorney for ndant Batlle-Quidgley 450 Plaza Drive Vestal, NY 13850 Telephone: (607) 763-9200 Fax: (607) 763-9211 Email: mfowler@lgtlegal.com {L101355 6.1} 4 of 4