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FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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ORELL GAYNOR,
AFFIRMATION IN
Plaintiff, OPPOSITION TO
PLAINTIFF’S MOTION
-against-
Index No. 303755/2016E
THE NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, THE CITY OF NEW YORK, LINCOLN
MEDICAL AND MENTAL HEALTH CENTER,
EDUARDO J. RODRIGUEZ PEREZ, M.D., ANDALEEB
RAJA, M.D., PRONOY ROY, M.D., NEW YORK CITY
HOSPITAL POLICE DEPARTMENT and PHYSICIAN
AFFILIATE GROUP OF NEW YORK,
Defendants.
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DYAN KLEINMAN, an attorney duly admitted to practice law before the Courts
of the State of New York affirms, pursuant to Rule 2106 of the CPLR and subject to the penalties
for perjury, that the following facts are true:
1. I am an Associate Counsel in the Office of ANDREA COHEN, General
Counsel of New York City Health and Hospitals Corporation and attorney for NEW YORK CITY
HEALTH AND HOSPITALS CORPORATION, s/h/a NEW YORK CITY HEALTH AND
HOSPITALS CORPORATION and LINCOLN MEDICAL and MENTAL HEALTH CENTER
and NEW YORK CITY HOSPITAL POLICE DEPARTMENT, and defendants EDUARDO J.
RODRIGUEZ PEREZ, M.D., ANDALEEB RAJA, M.D., PRONOY ROY, M.D., PHYSICIAN
AFFILIATE GROUP OF NEW YORK (collectively hereinafter “HHC Defendants”). I am
familiar with the facts and circumstances surrounding this litigation, based on the records
maintained by the Office of the General Counsel in the defense hereof.
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2. This affirmation is submitted in opposition to plaintiff’s motion dated July 26,
2022 seeking an Order to compel HHC Defendants’ to produce (1) unredacted videos of
surveillance video, (2) redacted copies of non-party patient records, (3) responses to various
demands for discovery and inspection that on its face are overly broad, unduly burdensome,
palpably improper, and seek privileged and or confidential information that is protected by
HIPAA, and (4) unjustifiably seeks further deposition of Dr. Eduardo Rodriguez-Perez, Dr.
Andaleeb Raja, MD, and Dr. Prony Roy, despite valid objections based on privilege. As discussed
below, HHC Defendants’ maintain that the information sought is protected under both federal and
state law privileges and is not discoverable.
PROCEDURAL AND FACTUAL HISTORY
3. Plaintiff, Orell Gaynor, R.N., while working as an employee at NYC Health +
Hospitals / Lincoln, alleges that on January 3, 2016 he was assaulted by a nonparty patient and
that as a result he suffered mandibular fractures requiring an open reduction and internal fixation.
4. For the sake of brevity, HHC Defendants’ herein adopt paragraphs 9-18 of
Bruce Povman, Esq. Affirmation in support dated July 26, 2022.
5. This opposition is timely as per the filed stipulation dated August 24, 2022. See
NYSCEF Doc. No. 21, STIPULATION - OTHER. 1
6. Of note is that while plaintiff submits a good faith affirmation, that affirmation
states that attempts to resolve discovery disputes occurred nearly two years ago despite plaintiff
Pursuant to CPLR §2214 (c), “… in an e-filed action, a party that files papers in connection with a
1
motion need not include copies of papers that were filed previously electronically with the court, but may
make reference to them, giving the docket numbers on the e-filing system.” To view the document
referenced, press CTRL + CLICK on the hyperlink provided.
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just now making the instant motion. See NYSCEF Doc. No. 6, AFFIRMATION OF GOOD
FAITH.
7. Upon receipt of plaintiff’s motion, and in an effort to resolve discovery
disputes, counsel herein has provided plaintiff’s counsel with an invoice so that they may retain
the redacted surveillance video footage. Annexed hereto as Exhibit A is the invoice for the
redacted surveillance video.
ARGUMENT
I. PLAINTIFF IS NOT ENTITLED TO UNREDACTED VIDEOS OR MEDICAL
RECORDS BECAUSE THE DISCOVERY SOUGHT IS BARRED BY STATE AND
FEDERAL LAW.
8. Under the federal Health Insurance Portability and Accountability Act of 1996
(“HIPAA”), the “disclosure of an identifiable patient’s health information without the patient’s
authorization” is prohibited. 42 U.S.C. §1320d-6. Federal regulations similarly prohibit
disclosure of any identifiable patient’s health information without the patients’ authorization. See
45 CFR § 164.508. HIPAA provides severe penalties including high fines and even imprisonment
for disclosing protected medical information without proper authorization. 42 U.S.C. §1320d-
6(b).
9. The definition of “health information” includes any information that relates to
a patient’s “past, present, or future physical or mental health or condition; the provision of health
care to an individual; [and] the past, present, or future payment for the provision of health care to
an individual.” 45 C.F.R. §160.103. Thus HHC is precluded from providing plaintiffs or any entity
copies of any medical records that pertain to the nonparty assailant.
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10. While the Privacy Rule does authorize the disclosure of health information in
certain, limited situations including in response to a Court Order, the order cannot be obtained
without first serving the patient with notice of the application. See 45 C.F.R. 164.512(e)(1)(ii)(A)
(satisfactory assurance from person seeking health information must be provided to the producing
entity that “reasonable efforts have been made… to ensure that the individual who is the subject
of the protected health information… has been given notice of the request.”). In Matter of Miguel
M. (Barron), 17 N.Y.3d 37, 42 (2011), the Court of Appeals of New York examined such a
situation and held that an unauthorized disclosure of medical information without notice to the
patient is inconsistent with the Privacy Rule.
11. In Miguel M., a designee of the New York City Department of Health and
Mental Hygiene obtained and offered into evidence a patient’s medical records in the course of a
petition seeking an order pursuant to Kendra’s Law (New York State Mental Hygiene Law § 9.60)
compelling additional mental health treatment for the patient; however, the records were obtained
without authorization by, or notice to, the patient himself. Id. at 40-41. Even in such a situation,
where a patient’s records were sought in an effort to best aid that very individual, the Court of
Appeals denied the use of the records as impermissibly obtained. The Court acknowledged that
there may be situations where a court might permit record disclosure over a patient’s objection,
but the Court held that at a minimum, that patient must have notice that his records are being
sought. The Court held that the Respondent, had he sought a court order to release the records,
“could not, absent extraordinary circumstances, have obtained a court order requiring disclosure
without giving such notice.”
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12. In addition to HIPAA and associated regulations, New York State provides
further protections that are more stringent than HIPAA. These laws are codified in the CPLR and
in the Mental Hygiene Law. Where state laws provide a higher level of privacy protection than
HIPAA, the state law prevails. 42 U.S.C. §1320d-7; 45 C.F.R. §160.203(b); Matter of Miguel M.
(Barron), 17 N.Y.3d 37, 42 (2011); Liew v. New York Univ. Med. Ctr., 55 A.D.3d 566 (2d Dep’t
2008) citing Arons v. Jutkowitz, 9 N.Y.3d 393 (2007); Matter of Antonia E. v. Family Court of
New York, 16 Misc. 3d 637 (Sup Ct, Queens County 2007).
13. CPLR 3101(b) unequivocally states that privileged matters shall not be
obtainable. In fact, the privilege is to be given a broad and liberal construction to further the policy
behind the privilege. See Matter of Grand Jury Investigation in NY County, 98 N.Y.2d at 530.
Under Article 45 of the CPLR, a patient’s medical records are protected by the physician-patient
privilege, and a hospital is prohibited from disclosing a patient’s medical and health records, absent
a waiver of that privilege. See CPLR 4504, 4507, and 4508; Suchorzepka v. Mukhtarzad, 103
A.D.3d 878 (2D Dep’t 2013); Lee v. New York City Transit Auth., 257 A.D.2d 611 (2d Dep’t
2001); Sohan v. Long Island College Hospital, 282 A.D.2d 597 (2d Dept. 2001); Marriott Int’l,
Inc. v. Lonny’s Hacking Corp., 262 A.D.2d 10 (1st Dep’t 1999); see also Matter of Camperlengo
v. Blum, 56 N.Y.2d 251, 254 (1982); Farrow v. Allen, 194 A.D.2d 40, 43 (1st Dep’t 1993).
Disclosure in violation of this privilege can result in grievous penalties or sanctions to the
offending party. Education Law §6509; Lehman v. Lehman, 94 A.D.2d 761 (2d Dep’t 1983) (“To
direct access to patient files and patient ledgers would be in clear violation of the physician-patient
privilege and would subject the defendant to severe sanctions”).
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14. The “physician-patient” privilege prohibits disclosure of any information
acquired by a physician “in attending a patient in a professional capacity, and which was necessary
to enable him [or her] to act in that capacity.” Fox v. Marshall, 91 A.D.3d 710 (2d Dep’t 2012)
quoting Dillenbeck v. Hess, 73 N.Y.2d 278 (1989). Pursuant to CPLR 4504, physicians, nurses,
and related professionals “shall not be allowed to disclose any information which he [or she]
acquired in attending a patient in a professional capacity, and which was necessary to enable him
[or her] to act in that capacity.” CPLR 4504(a); see also CPLR 4507; Fox, 91 A.D.3d at 711;
People v. Elysee, 49 A.D.3d 33, 37-40 (2d Dep’t 2007). A hospital may assert the privilege for
the protection of a patient who has not waived the privilege. See Matter of Grand Jury
Investigation of Onondaga County, 59 N.Y.2d 130, 135 (1983). Matter of Grand Jury
Investigation in NY County, 98 N.Y.2d at 530; Marte v. Brooklyn Hosp. Ctr., 9 A.D.3d 41 (2d
Dep’t 2004); Gunn v. Sound Shore Med. Ctr., 5 A.D.3d 435 (2d Dep’t 2004) (since disclosure of
the patients’ names will, in effect, reveal that they were undergoing treatment for cardiac-related
conditions, such discovery is prohibited under CPLR 4504 [a]); Ashford v. Brunswick Psychiatric
Center, 90 A.D.2d 848 (2d Dep’t 1982) (“Regardless of the theory of liability, CPLR 4504 shields
the patient's medical information [diagnosis, prognosis and propensities] from disclosure”).
15. Plaintiff’s demand that defendants provide “any and all area B, Emergency
Department surveillance films,” is not limited in scope to a specific time period or date and seeks
information that is protected (i.e., the identity of each patient via his/her image.) As such, as the
demand stands it is overly broad, unduly burdensome, lacking sufficient specificity and palpably
improper to the extent that it requests information which is privileged under federal and state
privacy laws or was produced in connection for quality assurance purposes.
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16. “A party’s right to discovery is not unlimited… [and] may be curtailed when
it becomes an unreasonable annoyance and tends to harass and overburden the other party.”
Harrison v. Bayley Seton Hospital, 219 A.D.2d 584; 631 N.Y.S.2d 182 (2d Dept. 1995); See also,
Ravnikar v. Skyline Credit-Ride, Inc., 79 A.D.3d 1118, 913 N.Y.S.2d 339 (2d Dept. 2010);
Brandes v. North Shore Univ. Hosp., 1 A.D.3d 550, 767 N.Y.S.2d 666 (2d Dept. 2003).
17. Plaintiff’s reliance on Thompson v. Pilby Residential Programs, 69 A.D.3d
453, 892 N.Y.S.2d 395 (1st Dep’t. 2010) is misplaced. In that case, the assailant was a named
defendant (and, as such, on notice of the motion) and the records that were provided were redacted
and limited in scope as to the defendant assailant’s behavior only. The Thompson defendant’s
medical history and treatment remained confidential.
18. Notwithstanding the above, upon receipt of proper payment, the HHC
Defendants do not object to providing surveillance footage, limited in scope to the time and date
of the assault, in which the facial features of the assailant and any bystanders have been blurred.
This should suitably inform plaintiff of the circumstances surrounding the assault without
jeopardizing the privacy of the assailant and any other patient witnesses.
19. In sum, plaintiffs have made no showing whatsoever that their need for
confidential medical information outweighs the pertinent and well-settled public policy issues
mandating strict privacy pertaining to records of general medical care. They failed to sufficiently
articulate why the plaintiff’s interests in recovering monetary compensation for their alleged
injuries outweigh the need for confidentiality of a nonparty patient’s medical information.
Exelbert v. State, 140 A.D.2d 665 (2d Dep’t 1988) (“claimants’ intent to expand upon the theory
of liability provides no basis for… directing the State to disclose to the claimants specified medical
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information contained in the records of the nonparty patient”); see also Kinlaw v. Walsh, 2011
U.S. Dist. LEXIS 115969 (S.D.N.Y. 2011) (New York courts have determined that the “interests
of justice” must be more compelling than the mere filing of a lawsuit against a defendant).
Therefore, this Court should deny plaintiffs’ motion because it fails to sufficiently establish that
the interests of justice significantly outweigh the need for patient confidentiality. See In re
Garinger, 305 A.D.2d 677 (2d Dep’t 2003) (when read in conjunction with the evidentiary record,
the petition fails to allege any material facts to demonstrate… that Jane Doe’s clinical records
should be disclosed based on a finding that the interests of justice significantly outweigh the need
for confidentiality); see also Meja v. Laffer et al., 2014 N.Y. Misc. Lexis 4203 (N .Y. Sup. Ct.,
2014), (court refused to order disclosure of a convicted felon’s medical records in a related civil
action against the felon’s doctors, as felon did not authorize their disclosure.)
II. PLAINTIFF IS NOT ENTITLED TO THE DISCOVERY SOUGHT IN THEIR JUNE
8, 2017 DEMANDS.
20. Defendants’ properly responded to plaintiff’s demands for Discovery &
Inspection dated June 8, 2017. With respect to the demands in paragraphs 6, 27, 36 and 37,
defendant objected on the basis that the information sought was overly broad, unduly burdensome,
vague, lacking sufficient specificity, palpably improper, sought privileged and confidential patient
health information without an appropriately executed authorization and is in contravention of
HIPAA, 42 USCS § 1302d; NYS Mental Hygiene Law §, and CPLR §§3122, 3103, 4504, 4507,
and 4508.
21. It bears repeating that a parties right to discovery is not unlimited.
Plaintiff’s demands contain generic boiler plate language which seeks information related to
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unknown altercations that took place within a five year period. As thoroughly discussed above,
not only is the information sought irrelevant to the matter at hand, it is privileged and protected by
patient privacy laws.
III. PLAINTIFF IS NOT ENTITLED TO FURTHER DEPOSITIONS.
22. Lastly, Plaintiff makes meritless accusations that there was obstruction of
deposition testimony. Pursuant to the Uniform Rules of the Trial Courts 22 NYCRR § 221.2, a
deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of
confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when
the question is plainly improper and would, if answered, cause significant prejudice to any
person. An attorney shall not direct a witness not to answer except under these limited
circumstances or pursuant to an objection set forth in CPLR 3115 (Parker v Ollivierre, 60 AD3d
1023, 876 N.Y.S.2d 134 [2d Dept 2009]). Additionally, the Uniform Rules of the Trial Courts [22
NYCRR] § 221.1(b) provides that "[s]peaking objections [are] restricted. Every objection raised
during a deposition shall be stated succinctly and framed so as not to suggest an answer to the
deponent and, at the request of the questioning attorney, shall include a clear statement as to any
defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule
3115 or by this rule, during the course of the examination persons in attendance shall not make
statements or comments that interfere with the questioning."
23. HHC Defendants maintain that all objections were proper and succinct and
that plaintiff’s request to re-depose four witnesses is not only infuriating but can only be seen as a
way to stall this case, serves as a fishing expedition and further wastes judicial resources.
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24. With respect to Dr. Perez’s deposition, Ms. Hatcher clearly and succinctly
objected to the questions based on privilege. The protected privilege is that of a nonparty patient
and the treatment rendered to that patient. As such, it is the patient’s privilege and only that patient
can waive said privilege. In fact, the doctor, himself, noted that he could not answer the question
without revealing details of the treatment of the patient which would be a violation of HIPAA.
25. With respect to Dr. Raja, again, objections were based on privilege and
confidentiality as plaintiff’s questions directly implicated the assailant patient and “help
summoned” or “treatment sought.”
26. During Dr. Roy’s deposition the doctor advised plaintiff’s counsel that he
was unable to answer the questions without violating HIPAA. Plaintiff may not like the answer
provided, however this does not entitle him to another deposition.
27. Similarly, non-party Nurse Mitsou Philogene answered the questions posed.
Moreover, plaintiff attempts to accuse defense counsel as guiding the witness due to shaking of
her head, however, there was no question posed when plaintiff alleged this was happening.
28. Accordingly all the questions posed were either properly objected to or
answered and plaintiff should not be afforded another opportunity to depose any of the witnesses.
CONCLUSION
29. In sum, the discovery sought by plaintiff is privileged under both federal
and state statutory law. Plaintiffs failed to place the patient assailant on notice of the underlying
motion, and has failed to submit any admissible evidence to show that the plaintiff’s interests
outweigh the need to protect patient confidentiality. Therefore, plaintiff’s motion should be
denied.
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WHEREFORE, it is respectfully submitted that plaintiff’s motion be denied in all
respects and for such other and further relief that this court finds just and proper.
Dated: New York, New York
October 17, 2022
Dyan Kleinman
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FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------- x ORELL GAYNOR, AFFIRMATION IN Plaintiff, OPPOSITION TO PLAINTIFF’S MOTION -against- Index No. 303755/2016E THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, THE CITY OF NEW YORK, LINCOLN MEDICAL AND MENTAL HEALTH CENTER, EDUARDO J. RODRIGUEZ PEREZ, M.D., ANDALEEB RAJA, M.D., PRONOY ROY, M.D., NEW YORK CITY HOSPITAL POLICE DEPARTMENT and PHYSICIAN AFFILIATE GROUP OF NEW YORK, Defendants. ----------------------------------------------------------------------- X DYAN KLEINMAN, an attorney duly admitted to practice law before the Courts of the State of New York affirms, pursuant to Rule 2106 of the CPLR and subject to the penalties for perjury, that the following facts are true: 1. I am an Associate Counsel in the Office of ANDREA COHEN, General Counsel of New York City Health and Hospitals Corporation and attorney for NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, s/h/a NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and LINCOLN MEDICAL and MENTAL HEALTH CENTER and NEW YORK CITY HOSPITAL POLICE DEPARTMENT, and defendants EDUARDO J. RODRIGUEZ PEREZ, M.D., ANDALEEB RAJA, M.D., PRONOY ROY, M.D., PHYSICIAN AFFILIATE GROUP OF NEW YORK (collectively hereinafter “HHC Defendants”). I am familiar with the facts and circumstances surrounding this litigation, based on the records maintained by the Office of the General Counsel in the defense hereof. 1 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 2. This affirmation is submitted in opposition to plaintiff’s motion dated July 26, 2022 seeking an Order to compel HHC Defendants’ to produce (1) unredacted videos of surveillance video, (2) redacted copies of non-party patient records, (3) responses to various demands for discovery and inspection that on its face are overly broad, unduly burdensome, palpably improper, and seek privileged and or confidential information that is protected by HIPAA, and (4) unjustifiably seeks further deposition of Dr. Eduardo Rodriguez-Perez, Dr. Andaleeb Raja, MD, and Dr. Prony Roy, despite valid objections based on privilege. As discussed below, HHC Defendants’ maintain that the information sought is protected under both federal and state law privileges and is not discoverable. PROCEDURAL AND FACTUAL HISTORY 3. Plaintiff, Orell Gaynor, R.N., while working as an employee at NYC Health + Hospitals / Lincoln, alleges that on January 3, 2016 he was assaulted by a nonparty patient and that as a result he suffered mandibular fractures requiring an open reduction and internal fixation. 4. For the sake of brevity, HHC Defendants’ herein adopt paragraphs 9-18 of Bruce Povman, Esq. Affirmation in support dated July 26, 2022. 5. This opposition is timely as per the filed stipulation dated August 24, 2022. See NYSCEF Doc. No. 21, STIPULATION - OTHER. 1 6. Of note is that while plaintiff submits a good faith affirmation, that affirmation states that attempts to resolve discovery disputes occurred nearly two years ago despite plaintiff Pursuant to CPLR §2214 (c), “… in an e-filed action, a party that files papers in connection with a 1 motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.” To view the document referenced, press CTRL + CLICK on the hyperlink provided. 2 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 just now making the instant motion. See NYSCEF Doc. No. 6, AFFIRMATION OF GOOD FAITH. 7. Upon receipt of plaintiff’s motion, and in an effort to resolve discovery disputes, counsel herein has provided plaintiff’s counsel with an invoice so that they may retain the redacted surveillance video footage. Annexed hereto as Exhibit A is the invoice for the redacted surveillance video. ARGUMENT I. PLAINTIFF IS NOT ENTITLED TO UNREDACTED VIDEOS OR MEDICAL RECORDS BECAUSE THE DISCOVERY SOUGHT IS BARRED BY STATE AND FEDERAL LAW. 8. Under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the “disclosure of an identifiable patient’s health information without the patient’s authorization” is prohibited. 42 U.S.C. §1320d-6. Federal regulations similarly prohibit disclosure of any identifiable patient’s health information without the patients’ authorization. See 45 CFR § 164.508. HIPAA provides severe penalties including high fines and even imprisonment for disclosing protected medical information without proper authorization. 42 U.S.C. §1320d- 6(b). 9. The definition of “health information” includes any information that relates to a patient’s “past, present, or future physical or mental health or condition; the provision of health care to an individual; [and] the past, present, or future payment for the provision of health care to an individual.” 45 C.F.R. §160.103. Thus HHC is precluded from providing plaintiffs or any entity copies of any medical records that pertain to the nonparty assailant. 3 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 10. While the Privacy Rule does authorize the disclosure of health information in certain, limited situations including in response to a Court Order, the order cannot be obtained without first serving the patient with notice of the application. See 45 C.F.R. 164.512(e)(1)(ii)(A) (satisfactory assurance from person seeking health information must be provided to the producing entity that “reasonable efforts have been made… to ensure that the individual who is the subject of the protected health information… has been given notice of the request.”). In Matter of Miguel M. (Barron), 17 N.Y.3d 37, 42 (2011), the Court of Appeals of New York examined such a situation and held that an unauthorized disclosure of medical information without notice to the patient is inconsistent with the Privacy Rule. 11. In Miguel M., a designee of the New York City Department of Health and Mental Hygiene obtained and offered into evidence a patient’s medical records in the course of a petition seeking an order pursuant to Kendra’s Law (New York State Mental Hygiene Law § 9.60) compelling additional mental health treatment for the patient; however, the records were obtained without authorization by, or notice to, the patient himself. Id. at 40-41. Even in such a situation, where a patient’s records were sought in an effort to best aid that very individual, the Court of Appeals denied the use of the records as impermissibly obtained. The Court acknowledged that there may be situations where a court might permit record disclosure over a patient’s objection, but the Court held that at a minimum, that patient must have notice that his records are being sought. The Court held that the Respondent, had he sought a court order to release the records, “could not, absent extraordinary circumstances, have obtained a court order requiring disclosure without giving such notice.” 4 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 12. In addition to HIPAA and associated regulations, New York State provides further protections that are more stringent than HIPAA. These laws are codified in the CPLR and in the Mental Hygiene Law. Where state laws provide a higher level of privacy protection than HIPAA, the state law prevails. 42 U.S.C. §1320d-7; 45 C.F.R. §160.203(b); Matter of Miguel M. (Barron), 17 N.Y.3d 37, 42 (2011); Liew v. New York Univ. Med. Ctr., 55 A.D.3d 566 (2d Dep’t 2008) citing Arons v. Jutkowitz, 9 N.Y.3d 393 (2007); Matter of Antonia E. v. Family Court of New York, 16 Misc. 3d 637 (Sup Ct, Queens County 2007). 13. CPLR 3101(b) unequivocally states that privileged matters shall not be obtainable. In fact, the privilege is to be given a broad and liberal construction to further the policy behind the privilege. See Matter of Grand Jury Investigation in NY County, 98 N.Y.2d at 530. Under Article 45 of the CPLR, a patient’s medical records are protected by the physician-patient privilege, and a hospital is prohibited from disclosing a patient’s medical and health records, absent a waiver of that privilege. See CPLR 4504, 4507, and 4508; Suchorzepka v. Mukhtarzad, 103 A.D.3d 878 (2D Dep’t 2013); Lee v. New York City Transit Auth., 257 A.D.2d 611 (2d Dep’t 2001); Sohan v. Long Island College Hospital, 282 A.D.2d 597 (2d Dept. 2001); Marriott Int’l, Inc. v. Lonny’s Hacking Corp., 262 A.D.2d 10 (1st Dep’t 1999); see also Matter of Camperlengo v. Blum, 56 N.Y.2d 251, 254 (1982); Farrow v. Allen, 194 A.D.2d 40, 43 (1st Dep’t 1993). Disclosure in violation of this privilege can result in grievous penalties or sanctions to the offending party. Education Law §6509; Lehman v. Lehman, 94 A.D.2d 761 (2d Dep’t 1983) (“To direct access to patient files and patient ledgers would be in clear violation of the physician-patient privilege and would subject the defendant to severe sanctions”). 5 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 14. The “physician-patient” privilege prohibits disclosure of any information acquired by a physician “in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity.” Fox v. Marshall, 91 A.D.3d 710 (2d Dep’t 2012) quoting Dillenbeck v. Hess, 73 N.Y.2d 278 (1989). Pursuant to CPLR 4504, physicians, nurses, and related professionals “shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity.” CPLR 4504(a); see also CPLR 4507; Fox, 91 A.D.3d at 711; People v. Elysee, 49 A.D.3d 33, 37-40 (2d Dep’t 2007). A hospital may assert the privilege for the protection of a patient who has not waived the privilege. See Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 135 (1983). Matter of Grand Jury Investigation in NY County, 98 N.Y.2d at 530; Marte v. Brooklyn Hosp. Ctr., 9 A.D.3d 41 (2d Dep’t 2004); Gunn v. Sound Shore Med. Ctr., 5 A.D.3d 435 (2d Dep’t 2004) (since disclosure of the patients’ names will, in effect, reveal that they were undergoing treatment for cardiac-related conditions, such discovery is prohibited under CPLR 4504 [a]); Ashford v. Brunswick Psychiatric Center, 90 A.D.2d 848 (2d Dep’t 1982) (“Regardless of the theory of liability, CPLR 4504 shields the patient's medical information [diagnosis, prognosis and propensities] from disclosure”). 15. Plaintiff’s demand that defendants provide “any and all area B, Emergency Department surveillance films,” is not limited in scope to a specific time period or date and seeks information that is protected (i.e., the identity of each patient via his/her image.) As such, as the demand stands it is overly broad, unduly burdensome, lacking sufficient specificity and palpably improper to the extent that it requests information which is privileged under federal and state privacy laws or was produced in connection for quality assurance purposes. 6 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 16. “A party’s right to discovery is not unlimited… [and] may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party.” Harrison v. Bayley Seton Hospital, 219 A.D.2d 584; 631 N.Y.S.2d 182 (2d Dept. 1995); See also, Ravnikar v. Skyline Credit-Ride, Inc., 79 A.D.3d 1118, 913 N.Y.S.2d 339 (2d Dept. 2010); Brandes v. North Shore Univ. Hosp., 1 A.D.3d 550, 767 N.Y.S.2d 666 (2d Dept. 2003). 17. Plaintiff’s reliance on Thompson v. Pilby Residential Programs, 69 A.D.3d 453, 892 N.Y.S.2d 395 (1st Dep’t. 2010) is misplaced. In that case, the assailant was a named defendant (and, as such, on notice of the motion) and the records that were provided were redacted and limited in scope as to the defendant assailant’s behavior only. The Thompson defendant’s medical history and treatment remained confidential. 18. Notwithstanding the above, upon receipt of proper payment, the HHC Defendants do not object to providing surveillance footage, limited in scope to the time and date of the assault, in which the facial features of the assailant and any bystanders have been blurred. This should suitably inform plaintiff of the circumstances surrounding the assault without jeopardizing the privacy of the assailant and any other patient witnesses. 19. In sum, plaintiffs have made no showing whatsoever that their need for confidential medical information outweighs the pertinent and well-settled public policy issues mandating strict privacy pertaining to records of general medical care. They failed to sufficiently articulate why the plaintiff’s interests in recovering monetary compensation for their alleged injuries outweigh the need for confidentiality of a nonparty patient’s medical information. Exelbert v. State, 140 A.D.2d 665 (2d Dep’t 1988) (“claimants’ intent to expand upon the theory of liability provides no basis for… directing the State to disclose to the claimants specified medical 7 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 information contained in the records of the nonparty patient”); see also Kinlaw v. Walsh, 2011 U.S. Dist. LEXIS 115969 (S.D.N.Y. 2011) (New York courts have determined that the “interests of justice” must be more compelling than the mere filing of a lawsuit against a defendant). Therefore, this Court should deny plaintiffs’ motion because it fails to sufficiently establish that the interests of justice significantly outweigh the need for patient confidentiality. See In re Garinger, 305 A.D.2d 677 (2d Dep’t 2003) (when read in conjunction with the evidentiary record, the petition fails to allege any material facts to demonstrate… that Jane Doe’s clinical records should be disclosed based on a finding that the interests of justice significantly outweigh the need for confidentiality); see also Meja v. Laffer et al., 2014 N.Y. Misc. Lexis 4203 (N .Y. Sup. Ct., 2014), (court refused to order disclosure of a convicted felon’s medical records in a related civil action against the felon’s doctors, as felon did not authorize their disclosure.) II. PLAINTIFF IS NOT ENTITLED TO THE DISCOVERY SOUGHT IN THEIR JUNE 8, 2017 DEMANDS. 20. Defendants’ properly responded to plaintiff’s demands for Discovery & Inspection dated June 8, 2017. With respect to the demands in paragraphs 6, 27, 36 and 37, defendant objected on the basis that the information sought was overly broad, unduly burdensome, vague, lacking sufficient specificity, palpably improper, sought privileged and confidential patient health information without an appropriately executed authorization and is in contravention of HIPAA, 42 USCS § 1302d; NYS Mental Hygiene Law §, and CPLR §§3122, 3103, 4504, 4507, and 4508. 21. It bears repeating that a parties right to discovery is not unlimited. Plaintiff’s demands contain generic boiler plate language which seeks information related to 8 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 unknown altercations that took place within a five year period. As thoroughly discussed above, not only is the information sought irrelevant to the matter at hand, it is privileged and protected by patient privacy laws. III. PLAINTIFF IS NOT ENTITLED TO FURTHER DEPOSITIONS. 22. Lastly, Plaintiff makes meritless accusations that there was obstruction of deposition testimony. Pursuant to the Uniform Rules of the Trial Courts 22 NYCRR § 221.2, a deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a witness not to answer except under these limited circumstances or pursuant to an objection set forth in CPLR 3115 (Parker v Ollivierre, 60 AD3d 1023, 876 N.Y.S.2d 134 [2d Dept 2009]). Additionally, the Uniform Rules of the Trial Courts [22 NYCRR] § 221.1(b) provides that "[s]peaking objections [are] restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning." 23. HHC Defendants maintain that all objections were proper and succinct and that plaintiff’s request to re-depose four witnesses is not only infuriating but can only be seen as a way to stall this case, serves as a fishing expedition and further wastes judicial resources. 9 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 24. With respect to Dr. Perez’s deposition, Ms. Hatcher clearly and succinctly objected to the questions based on privilege. The protected privilege is that of a nonparty patient and the treatment rendered to that patient. As such, it is the patient’s privilege and only that patient can waive said privilege. In fact, the doctor, himself, noted that he could not answer the question without revealing details of the treatment of the patient which would be a violation of HIPAA. 25. With respect to Dr. Raja, again, objections were based on privilege and confidentiality as plaintiff’s questions directly implicated the assailant patient and “help summoned” or “treatment sought.” 26. During Dr. Roy’s deposition the doctor advised plaintiff’s counsel that he was unable to answer the questions without violating HIPAA. Plaintiff may not like the answer provided, however this does not entitle him to another deposition. 27. Similarly, non-party Nurse Mitsou Philogene answered the questions posed. Moreover, plaintiff attempts to accuse defense counsel as guiding the witness due to shaking of her head, however, there was no question posed when plaintiff alleged this was happening. 28. Accordingly all the questions posed were either properly objected to or answered and plaintiff should not be afforded another opportunity to depose any of the witnesses. CONCLUSION 29. In sum, the discovery sought by plaintiff is privileged under both federal and state statutory law. Plaintiffs failed to place the patient assailant on notice of the underlying motion, and has failed to submit any admissible evidence to show that the plaintiff’s interests outweigh the need to protect patient confidentiality. Therefore, plaintiff’s motion should be denied. 10 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 WHEREFORE, it is respectfully submitted that plaintiff’s motion be denied in all respects and for such other and further relief that this court finds just and proper. Dated: New York, New York October 17, 2022 Dyan Kleinman 11 of 12 FILED: BRONX COUNTY CLERK 10/17/2022 02:31 PM INDEX NO. 303755/2016E NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 10/17/2022 12 of 12