| Liew v New York Univ. Med. Ctr. |
| 2008 NY Slip Op 07631 [55 AD3d 566] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Kimberly Liew et al., Plaintiffs, v New York University MedicalCenter, Defendant and Third-Party Plaintiff-Appellant. Juan B. Gabriel, Jr., et al., Third-PartyDefendants-Respondents. |
—[*1] Schiavetti, Corgan, Diedwards & Nicholson, LLP, New York, N.Y. (Samantha E. Quinn andAngela M. Ribaudo of counsel), for third-party defendants-respondents.
In an action, inter alia, to recover damages for wrongful death, etc., the defendant third-partyplaintiff NYU Hospitals Center, sued herein as New York University Medical Center, appeals (1), bypermission, from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated May 29,2007, which denied its application to compel the third-party defendant St. Luke's Hospital to producethe medical records of a nonparty organ donor, and (2) from an order of the same court dated October17, 2007, which denied its motion, in effect, for reargument.
Ordered that the appeal from the order dated October 17, 2007 is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order dated May 29, 2007 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the third-party defendants-respondents.
The plaintiff's decedent, Vincent Liew, also known as Vincent Eng Guan Liew, also known asVincent E. Liew, died of kidney cancer after he received a kidney transplant at a facility of thedefendant third-party plaintiff, NYU Hospitals Center, sued herein as New York University MedicalCenter (hereinafter NYU). The kidney was donated by a patient who was treated and died at a facilityof the third-party [*2]defendant St. Luke's Hospital (hereinafter St.Luke's) which provided the kidney to NYU. The plaintiff commenced this action against NYU, whichthereafter commenced a third-party action against St. Luke's and Juan B. Gabriel, Jr., M.D., allegingthat they were negligent, inter alia, in failing to adhere to proper transplant protocol. NYU sought anorder compelling disclosure of the donor's medical records, but the Supreme Court denied theapplication. We affirm.
The donor's medical records were covered by the physician-patient privilege (see CPLR4504 [a]), even after her death (see CPLR 4504 [c]; Prink v Rockefeller Ctr., 48NY2d 309, 314 [1979]; cf. Mayorga v Tate, 302 AD2d 11, 11-12, 17-18 [2002]), and wereject NYU's contention that the donor must be deemed to have waived the privilege with respect tosubsequent litigation merely by offering to donate an organ pursuant to Public Health Law article 43(cf. Green v Montgomery, 95 NY2d 693, 699 [2001]). Although the privilege may be waivedby a personal representative when the patient is deceased (see CPLR 4504 [c] [1]), there wasno such waiver here. Moreover, the Health Insurance Portability and Accountability Act of 1996(see Pub L 104-191, 110 US Stat 1936; hereinafter HIPAA) does not preempt state law withrespect to the confidentiality of the donor's records here inasmuch as it does not mandate disclosureunder these circumstance and the confidentiality afforded the donor's medical records by New York'sstatutory physician-patient privilege is stricter than that provided by HIPAA (see Arons v Jutkowitz, 9 NY3d 393,414-415 [2007]). Accordingly, the donor's medical records may not be disclosed.
The parties' remaining contentions either are without merit or need not be reached in light of ourdetermination.
Motion by the third-party defendants-respondents on appeals from two orders of the SupremeCourt, Queens County, dated May 29, 2007, and October 17, 2007, respectively, inter alia, to strikefrom the record the autopsy report of the organ donor, and to strike the papers submitted to theSupreme Court, Queens County, in connection with the order dated October 17, 2007, on the groundthat no appeal lies from an order denying reargument. By decision and order on motion dated March20, 2008 [2008 NY Slip Op 67132(U)], the branches of the motion which were to strike the autopsyreport of the organ donor and to strike the papers submitted to the Supreme Court, Queens County, inconnection with the order dated October 17, 2007, were held in abeyance and referred to the panel ofJustices hearing the [*3]appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon theargument of the appeals, it is
Ordered that the branch of the motion which was to strike the autopsy report of the organ donor isgranted, and that portion of the record is stricken and has not been considered on the appeals; and it isfurther,
Ordered that the branch of the motion which was to strike the papers submitted to the SupremeCourt, Queens County, in connection with the order dated October 17, 2007, is denied as unnecessaryin light of our determination of the appeal from that order. Fisher, J.P., Dillon, McCarthy and Belen, JJ.,concur.