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McMahon v. New York Organ Donor Network, Inc.

Supreme Court, New York County

April 6, 2017

Patrick McMahon, Plaintiff,
v.
New York Organ Donor Network, Inc., Defendant.

          For Plaintiff: Borrelli & Associates, PLLC Great Neck, NY

          For Defendant: Ganfer & Shore, LLP New York, NY

          Arlene P. Bluth, J.

         Plaintiff's motion to compel defendant to provide full and complete responses to Demand No. 5 of Plaintiff's Sixth Demand for the Production of Documents is granted.

         Background

         This whistle blower action arises out of plaintiff's termination from his job as a Transplant Coordinator for defendant. Plaintiff alleges that he was fired after making complaints that defendant's employees were procuring organs from individuals without performing legally-required tests. Plaintiff further claims that in some instances, organs were taken from individuals who were still showing clear signs of life. Plaintiff claims that he was fired in violation of New York Labor Law (NYLL) § 740.

         Defendant denies plaintiff's allegations relating to the procurement of organs. Defendant claims that plaintiff was fired for poor performance in November 2011 while he was still a probationary employee.

         In the instant motion, plaintiff seeks the production of medical records of four specific patients whom plaintiff alleges showed signs of life right before defendant procured these individuals' organs. The parties attempted to resolve this issue at various court conferences. Defendant provided plaintiff with the last known address for the next of kin for all four individuals in order to allow plaintiff to secure consent to release the patients' medical records. Plaintiff contends that he was unable to obtain consent from the next of kin despite his diligent efforts. Plaintiff now brings this motion to obtain the medical records from defendant.

         Plaintiff argues that defendant is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA) and, therefore, defendant should turn over the medical records of the four individuals. Plaintiff maintains that these records are material and necessary because plaintiff insists that each person showed signs of brain activity when their organs were harvested, a fact that he must prove in order to prevail on his asserted cause of action. Plaintiff also observes that even if defendant were a covered entity under HIPAA, it could still turn over records pursuant to the parties' confidentiality agreement.

         In opposition, defendant acknowledges that it is not a covered entity under HIPAA but that it must maintain patient confidentiality. Defendant also points out that it has entered into memorandums of understanding (MOUs) with hospitals in which defendant gains access to confidential patient information in order to facilitate the organ donor process. Defendant maintains that it would defeat the purpose of HIPAA if it were required to comply with plaintiff's requests. Defendant argues that its status as a non-profit organ procurement organization (OPO) would be at risk if it were required to turn over these records.

         Discussion

         "CPLR 3101(a) entitles parties to full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (Andon ex rel. Andon v 302-304 Mott St. Assoc., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873');">709 N.Y.S.2d 873 [2000]). "What constitutes material and necessary should be construed liberally to require disclosure of any facts bearing on the controversy which assist by sharpening the issues and reducing delay" (Polygram Holding, Inc. v Cafaro, 42 A.D.3d 339, 340-41, 839 N.Y.S.2d 493');">839 N.Y.S.2d 493 [1st Dept 2007] [internal quotations omitted]). "The test is one of usefulness and reason" (id. at 341). "A trial court is vested with broad discretion in its supervision of disclosure" (MSCI Inc. v Jacob, 120 A.D.3d 1072, 1075, 992 N.Y.S.2d 224');">992 N.Y.S.2d 224 [1st Dept 2014]).

         In order to prevail on a claim under NYLL § 740(2)(a), a plaintiff must show that an employer took:

"retaliatory personnel action against an employee because such employee... discloses, or threatens to disclose to a supervisor or public body an activity, policy or practice of the employer that is in violation of the law, rule or regulation which violation creates and presents a ...

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