Defendant's motion to compel is granted in part and denied in part.
|Claimant short name:||TAORMINA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Dell & Dean, PLLC
By: Joseph G. Dell, Esq.
|Defendant's attorney:||Cullen and Dykman LLP
By: Kristy R. Eagan, Esq.
|Third-party defendant's attorney:|
|Signature date:||April 19, 2019|
|See also (multicaptioned case)|
The instant claim was filed on March 13, 2017 seeking damages for injuries sustained when claimant fell while working on a construction site owned and operated by defendant. Defendant now moves to compel claimant's responses to certain discovery demands. Claimant opposes the motion.
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (see Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept. 2013]; Murphy v Hamilton, 90 AD3d 1294, 1295 [3d Dept. 2011]). Where a party "fails to respond to or comply with any request, notice, interrogatory, demand, question or order . . . , the party seeking disclosure may move to compel compliance or a response" (CPLR 3124). However, "[a] party is not obligated to provide unlimited, uncontrolled and unfettered disclosure" (Gutierrez v Trillium USA, LLC, 111 AD3d 669, 672 [2d Dept. 2013] [internal quotation marks and citation omitted]), and "those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied" (Capoccia v Spiro, 88 AD2d 1100, 1101 [3d Dept. 1982], appeal dismissed 57 NY2d 774 ; see Slate v State, 267 AD2d 839, 841 [3d Dept. 1999]).
On October 18, 2017, defendant, represented by prior counsel, served upon claimant a demand for medical records concerning claimant's prior injuries (Eagan Aff. Exhibit K). Specifically, the demand sought fully-executed HIPAA-compliant authorizations for the release of medical records from, or regarding: any and all medical providers who treated claimant for stents in her legs; any and all medical providers who treated claimant for cervical cancer; any and all chiropractors who treated claimant for her injuries; any and all EMGs claimant received for her injuries; any and all pharmacy records; any and all records from cardiologists who treated claimant for stents placed in her heart; and any and all records regarding claimant's left shoulder rotator cuff surgery (see id.).
Claimant responded to defendant's demand on February 8, 2018 and provided certain authorizations, but also stated that defendant's requests for records pertaining to claimant's treatment for stents in her legs and in her heart and for cervical cancer were "[n]ot applicable" as those injuries were unrelated to the accident at issue in the claim (Eagan Aff. Exhibit L ¶¶ 3-4, 8).
Following its filing of a consent to change attorneys, defendant served a second set of discovery demands dated May 7, 2018. The second set of discovery demands contained the same demands set forth in the October 18, 2017 demands, in addition to several others (Eagan Aff. Exhibits O, P). On May 17, 2018, the Court held a telephone conference with both parties and ordered claimant to respond to defendant's demands by June 22, 2018 (Eagan Aff. Exhibit Q). On June 19, 2018, claimant served responses to defendant's discovery demands (Eagan Aff. Exhibit R). Instead of providing a particularized response to defendant's discovery demands, claimant served responses to defendant's October 18, 2017 demands, effectively ignoring defendant's more recent set of demands dated May 7, 2018, to which the Court ordered claimant to respond. On July 10, 2018, defendant sent a good faith letter to claimant's counsel, outlining the deficiencies in claimant's response to the October 18, 2017 demands, and also requesting that claimant respond to the May 7, 2018 demands. Claimant did not response to defendant's letter, prompting defendant to file the instant motion.
In regard to claimant's objections set forth in her response to defendant's first set of discovery demands, defendant specifically seeks the production of claimant's medical records pertaining to stent placement in her legs and heart, her cervical cancer records, and records pertaining to prior injury and surgery on her left shoulder's rotator cuff.
A claimant waives the physician-patient privilege where a claimant affirmatively places his or her mental and/or physical condition in controversy (Dillenbeck v Hess, 73 NY2d 278, 286 ; Koump v Smith, 25 NY2d 287, 291-292 ). The burden of proving whether a party's physical condition is "in controversy is upon the party seeking the information" (Dillenbeck v Hess, 73 NY2d at 287). The Court's determination of whether or not a party has placed their physical or mental condition in controversy is " 'discretionary [and] must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure' " (Brito v Gomez, 168 AD3d 1, 4 [1st Dept. 2018], quoting Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 747 ). The case-by-case approach enunciated by the First Department has been interpreted more liberally in the Second Department, where that Court holds that a claimant or plaintiff affirmatively places his or her entire physical condition in controversy where the claimant or plaintiff sets forth "broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries" (Greco v Wellington Leasing L.P., 144 AD3d 981, 982 [2d Dept. 2016]; see also Kakharov v Archer, 166 AD3d 746, 747 [2d Dept. 2018]; Orlando v Richmond Precast, Inc., 53 AD3d 534, 535 [2d Dept. 2008]; Vanalst v City of New York, 276 AD3d 789, 789 [2d Dept. 2000]). Clearly departing from Second Department precedent, the First Department, in a 3-2 decision, declined to find that a claimant or plaintiff waives the physician-patient privilege as to his or her entire medical record simply by making claims for lost earnings and loss of enjoyment of life (Brito v Gomez, supra, at 8). In Brito, the First Department denied defendants' motion to compel the production of records pertaining to the plaintiff's prior knee injuries where the plaintiff's injuries listed in her bill of particulars were limited to her cervical spine, lumbar spine, and left shoulder (Brito v Gomez, supra, at 5). As this claim arose in Bronx County, which is located in the First Judicial Department, this Court is guided by First Department precedent.
Accordingly, the Court finds that defendant's request for records relating to stents placed in claimant's heart and her treatment for cervical cancer are improper, as claimant has not placed the condition of her heart or cervix "in controversy" within her bill of particulars. The Court, however, reaches a different conclusion as to defendant's request for records relating to previous treatment for stents placed in claimant's leg. In claimant's bill of particulars, she lists injuries to her "extremities" and notes "[l]ower back pain radiates down the bilateral lower extremities with numbness and tingling of the toes" (Eagan Aff. Exhibit E ¶ 6). As claimant has affirmatively placed the condition of her legs in controversy, the Court finds that she must disclose records related to stent placement in her legs.
In its June 19, 2018 response to defendant's second set of demands, claimant objected to defendant's request for authorizations from claimant's medical provider who performed surgery on her left shoulder rotator cuff as beyond the scope of discovery (Eagan Aff. Exhibit R ¶ 9). However, in claimant's previous response to defendant's first set of demands, dated February 8, 2018, claimant did not object to this request and provided defendant with an authorization for medical records from Citrus Memorial Hospital in Inverness, Florida (Eagan Aff. Exhibit L ¶ 9). Claimant also did not object to this request during a telephone conference with the Court on May 17, 2018 during which counsel for defendant requested a new authorization for medical records from Citrus Memorial Hospital that reflected claimant's last name at the time of her treatment at Citrus Memorial Hospital, as her last name was different at that time. Indeed, counsel for claimant agreed to provide the updated authorization, but then failed to do so. In consideration of these circumstances, the Court finds that claimant waived its objection to defendant's demand for medical authorizations regarding claimant's left shoulder rotator cuff surgery, and must provide the requested medical authorization (see Holy Spirit Ass'n for Unification of World Christianity v New York Property Ins. Underwriting Ass'n, 116 AD2d 787, 788 [3d Dept. 1986]).
The Court is also concerned with the clear discrepancy in claimant's February 8, 2018 and June 19, 2018 responses to defendant's demands in regard to requests for medical authorizations for any and all EMGs claimant received in connection with her injuries, and for her pharmacy records. In claimant's February 8, 2018 response, a medical authorization for records from Dr. Gus Katsigiorgis in Patchogue, New York was provided in response to defendant's request for EMG records (Eagan Aff. Exhibit L ¶ 6). In claimant's June 19, 2018 response, claimant stated that she never underwent EMG testing (Eagan Aff. Exhibit R ¶ 6). Clearly, one of those responses is incorrect, and claimant failed to address the discrepancy by not responding to defendant's good faith letter. Additionally, claimant's June 19, 2018 response does not provide defendant with claimant's pharmacy records and states that all medication that she took was over the counter (Eagan Aff. Exhibit R ¶ 7), yet claimant's medical records revealed that she has taken several prescription drugs in the past (see Eagan Aff. Exhibit S). Claimant must supplement these responses to remedy the discrepancies outlined by defendant.
Lastly, the Court must address claimant's position as to the May 7, 2018 demands served by defendant. Instead of serving a response to said demands, objecting to said demands during the May 17, 2018 conference with the Court, reaching out to defendant to confer regarding its objections to the demands, or responding to defendant's July 10, 2018 good faith letter, claimant chose to waste this Court's resources by addressing the propriety of the demands here. "[T]he absence of an excuse for the delay in responding to discovery demands, and the delaying party's failure to object to the demands, supports an inference that the failure to comply was willful" (Ramfort v Peak Tours, Inc., 250 AD2d 747, 747 [2d Dept. 1998], lv denied 92 NY2d 817 ). "The failure to comply with deadlines and provide good-faith responses to discovery demands 'impairs the efficient functioning of the courts and the adjudication of claims' " (Arpino v F.J.F. & Sons Elec. Co., Inc., 105 AD3d 201, 207 [2d Dept. 2012], quoting Gibbs v St. Barnabus Hosp., 16 NY3d 74, 81  [additional citation omitted]). As claimant provided some responses by the Court ordered deadline of June 22, 2018, the Court finds that harsh sanctions are not yet appropriate although the response was inadequate. Claimant's failure to respond to defendant's May 8, 2018 demands, and failure to confer in good faith following defendant's July 10, 2018 letter were at best careless, and at worst intentionally misleading. Claimant must serve a good faith response to defendant's demands, or risk the imposition of sanctions, including evidence preclusion or dismissal of the claim. The Court expects claimant to promptly comply with Court-imposed deadlines through the pendency of this action.
Based upon the foregoing, it is hereby
ORDERED that defendant's motion to compel (M-92737) is granted in part and denied in part as set forth above; and it is further
ORDERED that claimant shall provide defendant with HIPAA-compliant medical authorizations concerning medical treatment for stent placement in claimant's legs no later than twenty (20) days from the date of filing of this Decision and Order; and it is further
ORDERED that claimant shall provide defendant with a HIPAA-compliant medical authorization for claimant's records from Citrus Memorial Hospital in Inverness, Florida and that such authorization will reflect claimant's previous name of "Catherine Shelton" no later than twenty (20) days from the date of filing of this Decision and Order; and it is further
ORDERED that claimant shall supplement its responses regarding claimant's pharmacy and EMG records, as outlined above, no later than twenty (20) days from the date of filing of this Decision and Order; and it is further
ORDERED that claimant shall respond to defendant's supplemental discovery demands dated May 8, 2018 no later than twenty (20) days from the date of filing of this Decision and Order. In the event that claimant fails to comply with this Court's Decision and Order, the Court shall entertain a motion for sanctions, including dismissal of the claim.
April 19, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated August 20, 2018; and Affirmation in Support of Motion, affirmed by Kristy R. Eagan, Esq. on August 20, 2018 with Exhibits A through S annexed thereto.
2. Affirmation in Opposition, affirmed by Joseph G. Dell, Esq. on November 2, 2018, with Exhibits A through B annexed thereto.
3. Reply Affirmation in Further Support of Discovery Motion, affirmed by Kristy R. Eagan, Esq. on November 13, 2018.