| Matter of New York City Health & Hosps. Corp. v New York StateCommn. of Correction |
| 2010 NY Slip Op 06395 [76 AD3d 453] |
| August 17, 2010 |
| Appellate Division, First Department |
| In the Matter of New York City Health and Hospitals Corporation,Respondent, v New York State Commission of Correction,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Sharyn Rootenberg and Wayne A.McNulty of counsel), for respondent.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), enteredAugust 20, 2009, quashing the subpoena duces tecum issued by respondent New York StateCommission of Correction and served upon Elmhurst Hospital seeking the medical records of adeceased inmate, unanimously affirmed, without costs. Appeal from orders, same court andJustice, entered June 1, 2009 and July 8, 2009, unanimously dismissed, without costs, assubsumed in the appeal from the judgment.
The New York State Commission of Correction is an independent state agency that monitorsand inspects all correctional facilities in New York (see NY Const, art XVII, § 5;Correction Law § 45). Within the Commission is a medical review board responsible for,inter alia, investigating "the cause and circumstances surrounding the death of any inmate of acorrectional facility" (Correction Law § 47 [1] [a]). In the exercise of its duties, theCommission is authorized to issue and enforce subpoenas in accordance with the CPLR(see Correction Law § 46 [2]).
This case arises from the Commission's investigation into the death of inmate Carlos Frazier.Frazier was admitted to Elmhurst Hospital sometime in 2008 and was later transferred toBellevue Hospital where he died on August 19, 2008. On August 27, 2008, the Commissionserved a subpoena duces tecum upon Elmhurst Hospital seeking production of Frazier's medicaland mental health records. No one had executed an authorization for the records on behalf of thedecedent. Petitioner New York City Health and Hospitals Corporation (HHC), which operatesElmhurst Hospital, brought this proceeding to quash the subpoena and Supreme Court grantedHHC's application.
The subpoena was properly quashed because the records are protected from disclosure by thephysician-patient privilege. CPLR 4504 (a) provides that "[u]nless the patient waives theprivilege, a person authorized to practice medicine . . . shall not be allowed todisclose any information which he acquired in attending a patient in a professional capacity, andwhich was [*2]necessary to enable him to act in that capacity." Aphysician or hospital may assert the privilege for the protection of a patient who has not waivedthe privilege (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130,135 [1983]) and the privilege survives death (Liew v New York Univ. Med. Ctr., 55 AD3d 566 [2008]).
There is no question that the records sought by the Commission's subpoena fall within theambit of the physician-patient privilege. Nevertheless, the Commission argues that itsstatutorily-mandated investigative functions would be frustrated if it were required to obtainauthorizations before obtaining the medical records of deceased inmates. The mere fact that theCommission is authorized to issue subpoenas in aid of its investigations, without more, isinsufficient to eradicate the protections afforded by the physician-patient privilege (seeMatter of Grand Jury Investigation of Onondaga County, 59 NY2d at 132 [quashing grandjury subpoena on physician-patient privilege grounds]).
Although the Commission's goal of thoroughly investigating inmates' deaths is laudable,there is no general public interest exception to the privilege (People v Sinski, 88 NY2d487, 492 [1996]). Rather, "exceptions to the statutorily enacted physician-patient privilege arefor the Legislature to declare" (Matter of Grand Jury Investigation of Onondaga County,59 NY2d at 136). Here, no exception to the privilege is contained in any of the Correction Lawprovisions governing the Commission and its functions, and the Commission points to no otherstatutes creating any such exception for the records sought.
The Commission's argument that Elmhurst Hospital cannot assert the physician-patientprivilege because it is a target of the investigation into Frazier's death is raised for the first timeon appeal, and thus is not properly before us (see Jean v Kabaya, 63 AD3d 509 [2009]). Were we to consider it,we would reject it based on the sparse record before us. Although the privilege does not protectdisclosure of patient records where a hospital is being investigated by a grand jury in connectionwith possible crimes committed against its patients (see Matter of Grand Jury Proceedings[Doe], 56 NY2d 348 [1982]) or where there is an investigation by a government agency intoallegations of physician misconduct (see Atkins v Guest, 201 AD2d 411 [1994]), theCommission failed to make even a "minimal threshold showing" (id. at 411) that eitherof these exceptions applies here. The Commission did not submit an affidavit explaining thenature of its investigation and there is no specific evidence in the record to show that ElmhurstHospital, or any physician working there, is being investigated for any crimes or othermisconduct.
Indeed, the record is devoid of any facts as to the circumstances of Frazier's death. Thus, it isnot known why Frazier was taken to Elmhurst, how long he stayed there or why he wastransferred to Bellevue. Nor is there any indication as to the cause of his death. Given theabsence of any facts to show that Elmhurst Hospital or its physicians actually are the subject ofthe Commission's investigation, there is no basis to abrogate the physician-patient privilege. Inlight of this determination, we need not reach the question of whether the Health InsurancePortability and Accountability Act of 1996 (42 USC § 1320d et seq., as added byPub L 104-191, 110 US Stat 1936) provides independent grounds to quash the subpoena.Concur—Friedman, J.P., Sweeny, DeGrasse, Richter and Manzanet-Daniels, JJ.