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Carol H. Grieco, As Executrix of the Estate of John P. Grieco, Deceased v. Kaleida Health

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 25, 2011

CAROL H. GRIECO, AS EXECUTRIX OF THE ESTATE OF JOHN P. GRIECO, DECEASED,
PLAINTIFF-APPELLANT-RESPONDENT,
v.
KALEIDA HEALTH, JANIERIO D. ALDRIDGE,
M.D., BUFFALO THORACIC SURGICAL ASSOCIATES, P.C., IAN M.
BROWN, R.P.A.C., TAMMY B. ERVOLINA, R.P.A.C., ROBERT J. GAMBINO, R.P.A.C.,
DEFENDANTS-RESPONDENTS-APPELLANTS,
AND THOMAS J. CUMBO, M.D.,
DEFENDANT-RESPONDENT.

Appeal and cross appeals from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered February 8, 2010 in a medical malpractice action. The order denied in part and granted in part the motions and cross motion of defendants to compel medical authorizations.

Grieco v Kaleida Health

Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 25, 2011

PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.

Now, upon reading and filing the stipulation withdrawing defendants' appeals signed by the attorneys for plaintiff, defendant Kaleida Health, and defendants Janierio D. Aldridge, M.D., Buffalo Thoracic Surgical Associates, P.C., Ian M. Brown, R.P.A.C., Tammy B. Ervolina, R.P.A.C. and Robert J. Gambino, R.P.A.C. on November 24, 2010, It is hereby ORDERED that said cross appeals taken by defendant Kaleida Health and by defendants Janierio D. Aldridge, M.D., Buffalo Thoracic Surgical Associates, P.C., Ian M. Brown, R.P.A.C., Tammy B. Ervolina, R.P.A.C., and Robert J. Gambino, R.P.A.C. are unanimously dismissed upon stipulation and the order is otherwise affirmed without costs.

Memorandum:

Plaintiff, as executrix of the estate of her husband (decedent), commenced this action seeking damages for, inter alia, the alleged medical malpractice on the part of defendants in the care and treatment of decedent. Supreme Court granted in part the motion of defendants Janierio D. Aldridge, M.D., Buffalo Thoracic Surgical Associates, P.C., Ian M. Brown, R.P.A.C., Tammy B. Ervolina, R.P.A.C. and Robert J. Gambino, R.P.A.C., as well as the motion of defendant Thomas J. Cumbo, M.D. and the cross motion of defendant Kaleida Health, seeking, inter alia, to compel plaintiff to execute medical authorizations compliant with the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.) permitting defendants to interview decedent's treating physicians with respect to the medical information relevant to this case (see generally Arons v Jutkowitz, 9 NY3d 393, 409, 415). We affirm. Contrary to the contention of plaintiff, the court properly directed her to attach to the authorizations "a list of the allegations of negligence set forth in [her] bill of particulars" inasmuch as such information limits the scope of disclosure to only those medical conditions relevant thereto (see generally id. at 410). Further, the standardized form that the court directed plaintiff to use for the authorizations clearly states that the physician to be interviewed is permitted to discuss only the listed medical conditions, that the purpose of the interview is to assist defendants, that it is not at the request of plaintiff and that, despite plaintiff's authorization, the physician is free to decline defendants' request for an interview.

Entered: March 25, 2011

Patricia L. Morgan Clerk of the Court

20110325

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