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Frank H. Reith v. United States of America

September 14, 2011

FRANK H. REITH, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

Plaintiff Frank H. Reith ("plaintiff") brings this action pursuant to the Federal Tort Claims Act ("FTCA"), codified at 28 U.S.C. § 2671 et. seq., against the United States of America ("defendant"), seeking damages for injuries stemming from alleged negligence by the Veterans Affairs Medical Center ("VAMC") in the handling of his medical information. Currently before the court is defendant's motion for summary judgment (Doc. No. 22). For the reasons set forth below, defendant's motion for summary judgment is granted.

I. Facts and Procedural History

As a threshold matter, the court notes that counsel for the plaintiff did not submit a statement of material pursuant to Local Rule 7.1(a)(3) of the Northern District of New York.*fn1 At the time the motion for summary judgment was filed in the current action, Local Rule 7.1(a)(3) stated that *fn2

Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorney's affidavits. Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.

The moving party shall also advise pro se litigants about the consequences of their failure to respond to a motion for summary judgment. See L.R. 56.2.

The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs. The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.

N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original) (2008).

Accordingly, the court deems admitted the facts contained in defendant's statement of material facts for the purposes of this motion. Although the court assumes familiarity with the facts of this case from the Memorandum, Decision and Order on defendant's motion to dismiss in this action, filed on July 28, 2010 (Doc. No. 12), the court sets forth below the facts it has now deemed admitted.

Plaintiff alleges that on January 25, 2008 he visited the Veterans Administration Medical Center in Syracuse, to obtain medical records for his insurance company, regarding a back ailment. Complaint ¶¶ 16-18. He alleges he requested that the VA not disclose anything not related to the back pain, and in particular requested that no psychiatric records be released. ¶ 18. He alleges the VA negligently released information about his psychological illnesses to his insurer. ¶ 21.

Plaintiff alleges several possible, future injuries: the psychiatric information could "potentially" be used to shield his employer from future liability for an "unforeseen" accident (Complaint, ¶ 24); because of this release, he "may be" deemed unfit to drive a truck, and be terminated by his employer (¶ 25); he may suffer a "potential" loss of employment, wages, and other benefits (¶ 26); and his chances of finding a new job "if" he is let go, or receiving a promotion, are greatly reduced (¶ 28). The Complaint alleges that plaintiff might lose his job due to the release of information. The Complaint alleges no current or actual injuries.

The Complaint alleges five causes of action: 1) the VA failed to train its care providers to take notes of non-disclosure oral requests, 2) the VA failed to provide a procedure to prevent the disclosure of such information, 3) the VA failed to provide plaintiff with information that his nondisclosure request had to be in writing on the release itself, 4) the VA released unauthorized information to his employer/insurer, and 5) negligent infliction of emotional distress.

On January 25, 2008, plaintiff visited the Veterans Administration Medical Center in Syracuse, and signed a request for the release of medical records to an insurance company, ESIS Getzville. Ex. 4. The form states "I request and authorize Department of Veterans Affairs to release the information specified below to the organization, or individual named on this request." Id., VETERAN'S REQUEST. Plaintiff requested the release of three broad categories of information: "copy of hospital summary," "copy of outpatient treatment note(s)," and "other" [in the ]"Information Requested" section of [the] release. "Other" specified records included "copy of medical records dated 12/1/07 thru 1/25/08 pertaining to the low back injury." Id.

The request for release of medical records contains no exception or exclusion for psychiatric records; and it contains no request that mental health information be redacted from records of any other treatment. The form is signed by Frank Reith, twice. See "Signature of Patient or Person Authorized to Sign for ...


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