Where one patient is assaulted by another, plaintiff must prove that the facility knew or should have known of the assaultive patients “violent propensities” and, with that knowledge, supervised the assaultive patient more appropriately preventing the assault. See Williams v. Bayley Seton Hospital, 112 A.D.3d 917 (2nd Dep’t 2013); Royston v. Long Island Medical Center, Inc., 81 A.D.3d 806 (2nd Dep’t 2011).
However,the assaulting patient’s medical records are privileged pursuant to CPLR §4504, better known as doctor-patient privilege. Unless a person places his or her medical or psychiatric condition at issue, including as a pleaded affirmative defense, those records remain privileged without waiver. See Diamond v. Ross Orthopedic, 41 A.D.3d 768 (2nd Dep’t 2007). If the assaulting patient is not a named defendant, he or she cannot place their medical or psychiatric condition at issue and those records are protected.
The Mental Health Law, by court order, permits limited release of information about the non-waiving patient. See MHL §33.13. In cases where it is proven that the “interests of justice significantly outweigh the need for confidentiality,” MHL §33.13(1), the court may direct the release of “non-medical” portions of the record. Ashford v. The Brunswick Psychiatric Center, 90 A.D.2d 848 (2nd Dep’t 1982; Moore v. St. John’s Episcopal Hospital, 89 A.D.2d 618 (2nd Dep’t 1982). This information may include information about prior assaults committed by the specific patient while at the institution and the date and time this information came within the knowledge of the facility. See Mayer v. Albany Medical Center, 37 A.D.2d 1011 (3rd Dep’t 1971). It appears that, if that information is only found within the medical record, a court will review the records in-camera to determine what portions, if any, are to be disclosed. See Xu v. New York City health and Hospitals Corporation, 401404/12, NYLJ 1202723959319, (Sup., NY, Decided April 9, 2015).
By Theresa Scotto-Lavino, Esq.