|Claimant(s):||M.B and O.B.|
|Claimant short name:||B.|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||THE SCAGNELLI LAW FIRM, P.C.
By: Peter J. Scagnelli, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Joan Matalavage, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 15, 2017|
|See also (multicaptioned case)|
This claim seeks damages for injuries sustained by claimant M.B. when she was assaulted by a patient at the Capital District Psychiatric Center (CDPC). Claimants' counsel conducted depositions of defendant's employees Rachel Megyesi (formerly known as Rachel Andre) and James Gutowski, during which claimant's counsel posed certain questions to which defendant's counsel objected on the ground of privilege and directed the employees to not answer. Claimant now moves for an order directing Megyesi and Gutowski to answer the questions. Defendant opposes the motion.
In 2011, this Court granted in part claimants' motion for an order compelling disclosure of, inter alia, incident report material that was compiled by defendant's agents after the assault (see M.B. and O.B. v State of New York, UID No. 2011-038-518 [Ct Cl, DeBow, J., Apr. 5, 2011]). Included in the material produced were written statements about the incident signed by Megyesi (a registered nurse) and Gutowski (a master social worker), who treated and counseled the assailant prior to the assault. As noted above, defense counsel objected on the grounds of privilege to certain lines of questioning posed to Megyesi and Gutowski at their depositions in September 2016 (see Scagnelli Affirmation, ¶¶ 12, 14, 18, 24, 26, 28, 30, 32, 34, 36-38, 41, 43). Specifically, the following questions posed to Megyesi were subject to defense counsel's objections:
(1) Megyesi stated in her written statement that she had offered the assailant medication prior to the assault, and she was asked what prompted her to offer the assailant medication, whether he was doing anything that prompted her to offer him medication, and whether she felt that he needed to be calmed down when she offered medication (see Scagnelli Affirmation, Exhibit E [page 42, line 5 through page 43, line 17]);
(2) Megyesi's written statement stated that the assailant had declined medication, and she was asked whether the he was aggressive in his refusal or whether she recalled his attitude in giving the refusal (see id. [page 44, lines 3 through 19]).
(3) Megyesi was asked what she meant by her written statement that: "We had been skipping over [the assailant] to interview others as we knew that he would be admitted," (id. [page 45, line 4 through 16 and page 46, lines 7 through 14]).
Defendant's counsel objected to the following questions posed to Gutowski:
(1) Whether the assailant had told him why he had assaulted claimant (see id., Exhibit F [page 50, line 2 through page 51, line 7]);
(2) Gutowski's written statement stated that upon reporting for work that day, he received a report about the assailant from Tammy Staley, and he was questioned about what he had been told about the assailant (see id. [page 57, line 19 through page 58, line 5]);
(3) Gutowski was asked what he meant by his written statement that the assailant's mother was "concerned that he was decompensating," and what behavior led him to believe that the assailant was decompensating (see id. [page 60, line 20 through page 61, line 24]);
(4) Gutowski's written statement stated that he had offered the assailant medication to provide him relief, and he was asked why he thought that the assailant needed relief and whether the assailant was agitated and needed medication (see id. [page 92, line 24 through page 93, line 11]);
(5) Gutowski was asked what he meant by his written statement that he knew "from past experiences that [the assailant] had insight when stable, and he might accept the medication," whether the assailant was stable, and whether he believed that medication would help him (see id. [page 93, line 12 through line 24, page 94, lines 7-10]);
(6) Gutowski was asked what kind of medication he offered the assailant, whether it would calm him, whether he was exhibiting behavior that made him think that he would benefit from medication, whether he was offered medication twice, and what Gutowski meant by his written statement that a nurse had offered the assailant medication, "but he refused again" (see id. [page 95, line 4-18, page 96, lines 6-15]);
(7) Gutowski was asked what he meant by his written statement that "There was no cause to order medication over [the assailant's] objection" (see id. [page 97, lines 14-24]);
(8) Gutowski's written statement stated that he had offered the assailant something to eat later in his shift, and he was asked what prompted him to make the offer (see id. [page 98, lines 1-9]);
(9) Gutowski was asked whether the assailant was offered seclusion before the assault, and whether any consideration was given to segregating the assailant from women prior to the assault (see id. [page 102 lines, 1-5, page 102 line 12 through page 103, line 1]);
(10) Gutowski was presented with a document that was a screening and admission note completed on the day of the assault that stated that the assailant was noncompliant with his medications after he had been discharged from another hospital (see id., Exhibit D [Integrated Screening/Admission Note, at page 4]), and Gutowski was asked whether that information would have been conveyed to CDPC staff upon his initial intake (see id., Exhibit F [page 103, line 1 through page 104, line 8]).
Claimants argue that the questions that were addressed to statements made in the written statements were permissible because they sought clarification of statements in documents that were disclosed pursuant to Court order and also proper to examine the witnesses' states of mind when they made the statements. Claimants argue that the questions that were not specifically addressed to the written statements but which sought information about the behavior of the assailant on the date of the assault are relevant to whether defendant had notice of the assailant's propensity for violence or assault. Defendant argues that the questions posed "relate to the practitioner's observations or impressions leading up to their diagnostic decisions and opinions as to what treatment the alleged assailant would be offered on the day of the attack" and "impinge upon [the assailant's] right to have his privileged information remain confidential" (Matalavage Affidavit, ¶ 4). Defendant further contends that the repeated questioning as to the meaning of the statements seeks to explore the assailant's privileged information and "goes way beyond an inquiry as to whether the State was or should have been on notice of the assailant's propensity for assaultive behavior" (id.).
"In cases such as [this], '[i]nformation concerning medical diagnosis and treatment is privileged and may not be disclosed absent a showing that a compelling interest overrides the privilege, or that the interests of justice significantly outweigh the need for and the right of a mentally disabled patient to confidentiality'" (Bellamy v State of New York, 136 AD3d 1247, 1247-1248 [3d Dept 2016], quoting Exelbert v State of New York, 140 AD2d 665, 665 [2d Dept 1988]). The questioning of these two witnesses may be limited on "the issue of whether defendant should have been on notice of the assailant's propensity for assaultive behavior" and thus "[c]laimants are not entitled to inquire into diagnostic information but . . . may ask questions 'pertaining to prior assaults or attempted assaults by the patient [who assaulted claimant M.B.], including the time and place and surrounding circumstances, together with the date the information came within the knowledge of defendant' " (id., 136 AD3d at 1248, quoting Mayer v Albany Med. Ctr. Hosp., 37 AD2d 1011, 1011 [3d Dept 1971]). Thus, the privilege is not inviolable and may yield to questions that are sufficiently tailored to elicit information that would tend to prove that defendant's agents knew or reasonably should have known that the assailant posed a threat of assault in the waiting room that morning.
Claimants' assertion that they should be entitled to inquire into the meaning of any and all statements contained within the written statements is without merit. The written statements of the hospital employees were ordered to be produced because defendant did not adequately establish that the written statements were quality assurance material or were compiled under a medical malpractice prevention program (see M.B. and O.B. v State of New York, UID No. 2011-038-518 [Ct Cl, DeBow, J., Apr. 5, 2011]), but the production of the records pursuant to court order does not give claimant the unfiltered right to further inquire about privileged matters contained within the records. Thus, questions intended to clarify certain information that is set forth in the written statements will be permitted, and any such questions should be narrowly constructed so as not to elicit answers that would violate the assailant's patient privilege, except to the extent that such questions are tailored to elicit information that is relevant to defendant's notice that the assailant posed a threat of assault.
The bulk of the questions that claimant's counsel posed to the witnesses were too broadly phrased and would have elicited diagnostic information that would otherwise be privileged (see Scagnelli Affirmation, Exhibit E [page 42, lines 5-6, line 17-18; page 43, lines 6-7; page 45, lines 6-7; page 56, lines 7-8]; Exhibit F [page 50, lines 2-3; page 57, lines 19-20; page 60, lines 20-22; page 92, line 24 through page 93, line 3; page 93, lines 12-16 and lines 20-21; page 94, lines 7-8; page 95, lines 4-5 and lines 14-15; page 96, lines 6-7 and lines 11-12; page 97, lines 14-19; page 98, lines 4-6; page 102, lines 1-2 and lines 12-14]), and were not tailored to adduce specific responses that bore on the issue of the notice. Further, a question posed to Gutowski that inquired as to what the assailant said to him after the assault (see id., Exhibit F [page 50, lines 2-3]) has no bearing on the issue of defendant's prior notice of assailant's propensities.
However, the following questions posed to Megyesi and Gutowski were sufficiently tailored to elicit responses that bore on the issue of whether defendant's agents knew or reasonably should have known that the assailant was prone to assault claimant:
(1) As posed to Megyesi, whether the assailant was aggressive in refusing to accept medication (see id., Exhibit E [page 44, lines 3-5]);
(2) As posed to Gutowski, whether he felt the assailant needed medication because he was agitated (see id., Exhibit F [page 93, lines 7-8]).
Further, the question posed to Gutowski as to whether certain information about the assailant would have been conveyed to CDPC staff during his initial intake (see id., [page 103, lines 12-16]) does not appear to seek to elicit diagnostic information, but rather whether such information would have been known to CDCP staff.(1) Therefore, claimants' counsel may conduct a limited deposition of Megyesi and Gutowski limited to only those three questions, and given the late stage of the litigation of this claim, may do so in writing on stipulation (see CPLR 3108).
Accordingly, it is
ORDERED, that claimants' motion number M-90577 is GRANTED IN PART, and claimants shall be permitted to propound to Rachel Megyesi and James Gutowski the questions as recited above, and it is further
ORDERED, that claimants' motion number M-90577 is in all other respects DENIED.
November 15, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim No. 117766, filed December 7, 2009;
(2) Decision and Order in M.B. and O.B. v State of New York, UID No. 2011-038-518, (Ct Cl,
DeBow, J., Apr. 5, 2011);
(3) Decision and Order in M.B and O.B. v State of New York, UID No. 2014-038-530 (Ct Cl,
DeBow, J., unpublished decision dated June 17, 2014, filed July 5, 2011);
(4) Notice of Motion, dated June 7, 2017;
(5) Affirmation of Peter J. Scagnelli, Esq., dated June 7, 2017, with Exhibits A-F;
(6) Claimants' Memorandum of Law in Support of Motion to Compel, dated June 7, 2017;
(7) Affidavit of Joan Matalavage, AAG, in Opposition, sworn to July 19, 2017.
1. Indeed, in a prior decision and order the Court permitted a similar question to be posed of another witness (see M.B. and O.B. v State of New York, UID No. 2014-038-530 [Ct Cl, DeBow, J., unpublished decision dated June 17, 2014, filed July 5, 2011], at p.6).