Appeal from a judgment of the United States District Court for the Eastern District of New York, Anthony J. Travia, Judge, granting summary judgment in favor of the defendants in an action by a former mental patient to gain access to her hospital records.
Hays and Feinberg, Circuit Judges, and Holden, District Judge.*fn*
Janet Gotkin, a former mental patient, and her husband Paul brought an action in the United States District Court for the Eastern District of New York under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 (1970) seeking to have Mrs. Gotkin's records at Brooklyn State Hospital, Long Island Jewish-Hillside Medical Center, and Gracie Square Hospital made available to her. Judge Travia granted summary judgment in favor of the defendants. He held that the plaintiffs had failed to demonstrate that they had a constitutional right to inspect and copy Mrs. Gotkin's records.*fn1 Gotkin v. Miller, 379 F. Supp. 859 (E.D.N.Y. 1974). We affirm.
The facts are essentially undisputed. Between 1962 and 1970 Janet Gotkin was voluntarily hospitalized on several occasions mainly because of a series of suicide attempts. She has not received treatment since September, 1970. In April, 1973, the Gotkins contracted to write a book about Janet's experiences. In order to verify her recollections of various incidents, she wrote to three hospitals at which she had been a patient asking them to send her copies of her records. Brooklyn State Hospital and Long Island Jewish-Hillside Medical Center refused her request,*fn2 and Gracie Square Hospital did not respond.
The Gotkins then filed suit against the directors of the three hospitals and the New York State Commissioner of Mental Hygiene, alleging that the policies of the hospitals against granting requests such as Mrs. Gotkin's violated the rights of former mental patients under the First, Fourth, Ninth, and Fourteenth Amendments of the United States Constitution. The complaint demanded declaratory and injunctive relief in favor of the Gotkins and all others similarly situated. The court granted the defendants' motion for summary judgment. It held that Paul Gotkin was not a proper plaintiff because he was not a former mental patient and had not requested access to his or his wife's records.*fn3 379 F. Supp. at 862. As to Janet Gotkin and other members of her purported class, the court held that former mental patients have no First Amendment right to receive information contained in their hospital records,*fn4 379 F. Supp. at 862-63; that the Fourth Amendment prohibition of unreasonable searches and seizures is inapplicable, id. at 863; that plaintiffs enjoy no right of privacy entitling them to their records for purposes of publishing a book, id.; and that plaintiffs had not been deprived of "liberty" or "property" protected by the due process clause of the Fourteenth Amendment, id. at 864-68.
Appellants' main argument on this appeal is that the refusal by the hospitals to allow former mental patients to inspect their records deprives the patients of property without due process of law. We can find no basis for the proposition that mental patients have a constitutionally protected property interest in the direct and unrestricted access to their records which the appellants demand.
In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), the Supreme Court held that the Fourteenth Amendment is not an independent source of property rights. Id. at 577. The due process clause protects only those property interests already acquired as a result of "existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id.
In an attempt to satisfy the Roth criteria, appellants argue that under New York case law, patients have a property interest in their hospital records.*fn5 However, none of the cases cited by appellants indicates that patients have a right to unrestricted access to their records. The majority of the cited cases hold simply that under the discovery provisions of New York law, patients are entitled to a court order granting them access to their records for purposes of litigation. See Application of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455 (Sup. Ct. 1955); In re Greenberg's Estate, 196 Misc. 809, 89 N.Y.S.2d 807 (Sup. Ct. 1949); Hoyt v. Cornwall Hospital, 169 Misc. 361, 6 N.Y.S.2d 1014 (Sup. Ct. 1938); Application of Warrington, 105 N.Y.S.2d 925 (Ct. Cl. 1950) (mem.); Thomas v. State, 197 Misc. 288, 94 N.Y.S.2d 770 (Ct. Cl. 1950).
Appellants argue that these cases must be interpreted as establishing a general property right because in several instances courts ordered the hospitals to produce records even though no action had yet been filed. See, e.g., Application of Weiss, supra; In re Greenberg's Estate, supra. However, appellants fail to note that under New York law, discovery may be ordered by a court even before an action is commenced. N.Y.C.P.L.R. § 3102(c) (McKinney 1970) (previously N.Y.C.P.A. § 295). The court orders in Weiss, Greenberg, and Hoyt were explicitly founded on that provision.
Appellants claim that other New York cases grant patients access to their records regardless of pending or proposed litigation. In Sosa v. Lincoln Hospital, 190 Misc. 448, 74 N.Y.S.2d 184 (Sup. Ct. 1947) the court did allow access while discounting the possibility of litigation. However, the decision was based on a New York City Charter provision, not applicable here, which granted all taxpayers free access to city records. In Glazer v. Department of Hospitals, 2 Misc. 2d 207, 155 N.Y.S.2d 414 (Sup. Ct. 1956), the court ordered records produced under Article 78 of the Civil Practice Act (now N.Y.C.P.L.R. § 7801 et seq. (McKinney 1963)) rather than under the discovery provisions. However, the plaintiff claimed that she needed her records for purposes of a suit she had brought, and the court based its decision on the arbitrariness of the hospital's policy of refusing to release records to patients involved in litigation unless they assigned the proceeds of their actions to the hospital and to certain unnamed physicians. See 155 N.Y.S.2d at 417.
The only New York decision cited by the parties which deals directly with the question of whether a patient has a property interest in his records is In re Culbertson's Will, 57 Misc. 2d 391, 292 N.Y.S.2d 806 (Surr. Ct. 1968). In that case the court held that the records were the property of the physician but that a provision in a doctor's will calling for the destruction of his records would not be enforced because it violated public policy. Culbertson is consistent with the cases cited by the appellants. All of them indicate that ...