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In re Richmond University Medical Center

Other Lower Courts

January 23, 2008

In the Matter of the Application of Richmond University Medical Center pursuant to CPLR 2304 to Quash a Subpoena Duces Tecum dated December 14, 2007 issued by Richmond County District Attorney's Office.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

For The Respondent: Hon. Daniel M. Donovan, Jr. District Attorney of Richmond County By: Adam Silberlight, Esq. Assistant District Attorney Of Counsel

For The Movant: Richmond University Medical Center By: The Sipp Law Firm John P. Sipp, Jr. Of Counsel

OPINION

Robert J. Collini, J.

Upon consideration of the application [1] of Richmond University Medical Center (movant/ hospital) for an order pursuant to CPLR 2304 to quash a Grand Jury Subpoena Duces Tecum (hereinafter "subpoena"), dated December 14, 2007, the application is granted in part, without costs, in that the subpoena is modified to the extent specified as follows:

The subpoena purports to compel information from patients' medical records, reading in pertinent part, "The contact information of anyone treated for slashes or cuts to the body that came to your hospital between October 31, 2007 at 11:00 P.M. and November 1, 2007 at noon."

The facts in this case are distinguishable from Grand Jury Investigation in NY County, 98 N.Y.2d 525 (2002) (records of male patients, within a specified age range, treated for "a laceration, puncture wound or slash, or other injury caused by or possibly caused by a cutting instrument and/or sharp object") and Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983) (subpoena seeking "stab wounds or other wounds caused by a knife").

Unlike the aforesaid two cases, the subpoena in the instant matter does not (absent a possibility that is negated by the Court's modification below) "require a medical determination in order to furnish a response" ( People v. Greene, 36 A.D.3d 219, 227 [1st Dept 2006], affd 9 N.Y.3d 277 [2007]). In other words, if the injury is "conspicuous to the average layperson" ( People v. Greene, 36 A.D.3d at 226), then the physician-patient privilege (CPLR 4504) is not applicable.

While the Court of Appeals affirmed the decision of the First Department in Greene, it expressly did not consider the applicability of the physician-patient privilege and the subpoena under the facts presented. Further, as correctly argued by the People, under the circumstances of the instant case, this Court is bound by the First Department's decision in People v. Greene, supra. See, Mountain View Coach Lines v. Storms, 102 A.D.2d 663 (2d Dept 1984).

Here, the subpoena could arguably be read to request information that may not be perceived by the average layperson. The Court finds, in its present form, the subpoena could impart evidence of an injury concealed from public view and disclosed - verbally or visually - only in the course of seeking medical treatment.

For instance, while most people do not walk shirtless on a public street, if a patient incurred a laceration to the chest, such may easily be discernable through a tear in the shirt around the chest area with blood emanating there from. If a person suffers a laceration to his forearm and is only wearing a short-sleeve shirt, then that injury may also be obvious. Naturally, the aforesaid examples are for illustrative purposes only and are not intended to be an exhaustive account of what constitutes an "injury conspicuous to a layperson."

The Court has carefully considered the hospital's argument set forth in number six of the affidavit of Lora Giacomoni as to a burden on the hospital to search its records for the injuries specified in the subpoena. While the Court recognizes that "[t]he hospital's records are not maintained according to whether the injury was observable by a layperson," in that there is probably no "boilerplate" format in the records that confirms the aforesaid such as a "checkbox," neither does the Court find that an undue burden would be placed on the hospital to review its records for the brief time period set forth below. Those records should reveal the location of the laceration and initial impression of the patient, and depict any torn clothing, patent bleeding (such as a bleeding laceration to the face), and so forth. In any event, the Court finds that any burden placed upon the hospital is outweighed by overriding public ...


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