| Del Terzo v Hospital for Special Surgery |
| 2012 NY Slip Op 03713 [95 AD3d 551] |
| May 10, 2012 |
| Appellate Division, First Department |
| Diane Del Terzo et al., Respondents, v Hospital for SpecialSurgery et al., Appellants. |
—[*1] Kelner & Kelner, New York (Gerard K. Ryan, Jr., of counsel), for respondents.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered November 5, 2010,which, insofar as appealed from as limited by the briefs, denied defendants' motion to precludeplaintiff from offering evidence of future damages at trial or, in the alternative, to compelplaintiff to authorize the release of confidential information, unanimously affirmed, withoutcosts.
The underlying motion pursuant to CPLR 3124 and 3126 stems from plaintiff's refusal toauthorize the release of HIV-related information, alcohol/drug treatment information and mentalhealth information. Defendants argue that this information has a bearing on plaintiff's lifeexpectancy and is therefore material to plaintiff's claims for future damages. Defendantsgenerally rely on CPLR 3101 (a) insofar as it provides for "full disclosure of all matter materialand necessary in the prosecution or defense of an action." Plaintiff opposes defendant'sarguments, invoking the protections of confidentiality afforded by Public Health Law §2785 (2) and Mental Hygiene Law §§ 22.05 and 33.13.
Where pertinent, Public Health Law § 2785 (2) (a) gives a court discretion to grant anapplication for the disclosure of confidential HIV-related information upon a showing of "acompelling need for disclosure of the information for the adjudication of a criminal or civilproceeding." Citing CPLR 3101 (a), defendants argue that plaintiff's medical records are materialand necessary in the defense of this action because plaintiff has placed her life expectancy incontroversy. Defendants therefore claim to have made a prima facie showing of a compellingneed for disclosure. Defendants' argument appears to be based on the premise that a "compellingneed" under Public Health Law § 2785 (2) can be established by a showing that theinformation they seek is "material and necessary" within the purview of CPLR 3101 (a). Theargument is flawed for the following reasons.
Public Health Law § 2785 (1) provides: "Notwithstanding any other provision of law,no court shall issue an order for the disclosure of confidential HIV related information, except. . . in accordance with the provisions of this section." Such a "notwithstanding"clause in a statute operates as an exception to the provisions of law referenced in the clause(Engweiler v Board of Parole and Post-Prison Supervision, 343 Or 536, 544, 175 P3d408, 413 [2007][*2][internal quotation marks omitted]). Byoperation of the "notwithstanding" clause in Public Health Law § 2785 (1), all otherprovisions of law, including the "material and necessary" standard under CPLR 3101 (a), areexplicitly preempted by the "compelling need" standard under Public Health Law § 2785(2) (see e.g. Matter of Melendez vWing, 8 NY3d 598, 609-610 [2007]; Matter of State of New York v Zimmer, 63 AD3d 1563, 1563-1564[2009]). Therefore, as a matter of statutory construction, we reject defendants' attempt to equatethe two. We further note that defendants have not otherwise made a showing of a compellingneed for HIV-related information in this medical malpractice case which does not involve anyclaim relating to an HIV infection (compare Matter of Plaza v Estate of Wisser, 211AD2d 111 [1995] [compelling need for disclosure found in an action against the estate of adecedent who allegedly infected the plaintiff with the AIDS virus]). Nor have defendants evensuggested, on the basis of the medical records provided, that there is any history of HIV or AIDS.Indeed, defendants seem to be engaged in a fishing expedition.
Mental Hygiene Law § 22.05 provides that the records of a person who receiveschemical dependence services shall be released only in accordance with Mental Hygiene Law§ 33.13 and another section that is not relevant to this appeal. The pertinent part of section33.13 (c) (1) provides that mental health information shall not be released except "upon a findingby the court that the interests of justice significantly outweigh the need for confidentiality." As ageneral matter, disclosure is warranted where records of a sensitive and confidential nature relateto the injury sued upon (see Napoleoni v Union Hosp. of Bronx, 207 AD2d 660, 662[1994]). In Napoleoni we allowed discovery of treatment records pertaining to a mother'ssubstance abuse during her pregnancy in a medical malpractice action brought on claims ofnegligence in prenatal care, labor and the delivery of a baby (id.). The interests of justicestandard under Mental Hygiene Law § 33.13 has not been met in this case wheredefendants seek the disclosure of confidential records on the basis of nothing more than ageneralized assertion that substance abuse and mental illness can affect a person's level of stress,ability to work and life expectancy. Concur—Andrias, J.P., DeGrasse, Richter andAbdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op 33120(U).]