Second Department

Are Blood Test Results Obtained Via Warrant Protected by the Physician-Patient Privilege?

Gavel2 People v. Elysee, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007) is an interesting case.  The defendant was involved in an automobile accident which involved a fatality.  Shortly thereafter, the defendant was transported to the hospital and a blood samples were obtained via a warrant. 

The defendant moved to suppress the blood test results, making the novel argument that the seizure of his blood violated the physician-patient privilege. 

The Court disagreed with the defendant’s assertion, holding that a blood specimen taken by a medical professional is not “information” protected by New York’s statutory physician-patient privilege:

In conclusion, there is nothing in the language of CPLR 4504(a) or in the case law interpreting it that supports its application to the physical blood samples at issue here. Moreover, there is simply no compelling public policy interest that would justify expanding the physician-patient privilege to a physical blood sample. To hold otherwise would deprive the jury of lawfully seized material and probative evidence. Thus, we conclude that the physician-patient privilege is not applicable to a physical blood sample drawn by a medical professional and lawfully seized pursuant to CPL 690.10. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to suppress the search warrant blood samples.

I haven't researched this issue, but if other Department's have not yet addressed this issue, it might be worth a shot.  Another novel argument that I've seen made in other jurisdictions is that seizure of a blood sample violates HIPAA.  I'm not sure if that argument has been made in New York, but again--it's worth a try.

Second Department--Defamation Is As Defamation Does

The Second Department recently handed down an interesting decision regarding a defamation claim.  In  Kotowski v Hadley. 2007 NY Slip Op 01834, the plaintiff, a general manager of a cooperative apartment complex, alleged that the defendant, a tenant of the apartment complex, defamed him in a series of emails over the course of a year.  The mails were distributed to approximately 100 people who were tenants and shareholders of the apartment complex via an email distribution list maintained by the defendant. 

Among the alleged defamatory statements were allegations that the plaintiff illegally wiretapped telephones at the apartments, violated fire safety laws, and falsified crime statistics during his former employment with the NYC police department.

The Second Department first concluded that the alleged statements  "were reasonably susceptible of a defamatory meaning and did not constitute personal opinion since they reasonably appeared to contain assertions of objective fact which do not fall within the scope of protected opinion."

The Court then determined that although the people on the email distribution list shared a common interest, thus affording the defendant's communications a qualified privilege, the privilege was overcome by the plaintiff's showing of actual malice sufficient to withstand a motion to dismiss:

Contrary to the defendant's contention, the complaint sufficiently pleaded malice. Specifically, the plaintiff alleged, inter alia, that certain specified communications (the content of which was contained in the complaint) were made with malice, that the defendant continued to publish them notwithstanding their falsity, and that he did so solely to discredit the plaintiff and injure the plaintiff's good name and reputation so as to cause the termination of his employment at NST. Moreover, the plaintiff had no obligation to show evidentiary facts to support these allegations of malice on a motion to dismiss pursuant to CPLR 3211(a)(7)...

I come across decisions addressing this particular tort fairly infrequently, so this opinion was of particular interest to me.  While the holding wasn't exactly ground breaking, it's always useful to review the law regarding claims that are not litigated as frequently as your typical slip and fall or car accident.

Second Department Holds Fall From Height Not Within Ambit of the Labor Law

In a recent Second Department Labor Law case, Linkowski v City of New York, 2006 NY Slip Op 07856, the plaintiff was injured when he slipped and fell on a wet stairway landing and fell through plastic netting at the edge of the landing and fell four or five feet down to the floor below.  At the time, the plaintiff was performing asbestos removal work at a Department of Sanitation facility owned by the City of New York.

The Second Department considered a number of interesting issues, including whether Labor Law ss. 240(1), 241(6) and 200 applied to the plaintiff's claims of injury. 

Not surprisingly, the Court concluded that s. 240(1) did not apply since the alleged injuries were not the result of an elevation-related risk within the meaning of that section of the Labor Law.

However, the Court concluded that there were issues of fact as to the plaintiff's Labor Law ss. 241(6) and 200 claims:

With respect to the plaintiff's Labor Law § 241(6) cause of action, to the extent it is predicated upon an alleged violation of 12 NYCRR 23-1.7(d), the Supreme Court correctly found that triable issues of fact exist as to whether the City violated that regulation by allegedly permitting a slippery condition to exist on the stairway landing...Contrary to the City's contention, the plaintiff's deposition testimony established that the stairway landing where the accident occurred was a passageway to and from the work site... Responsibility under Labor Law § 241(6) extends not only to the point where the . . . work was actually being conducted, but to the entire site, including passageways utilized in the provision and storage of tools, in order to insure the safety of laborers going to and from the points of actual work...

With respect to the plaintiff's common-law negligence and Labor Law § 200 causes of action, summary judgment was properly denied since there are issues of fact as to whether the City created or had actual or constructive notice of the allegedly dangerous condition which caused the plaintiff's accident... (Internal citations and quotations omitted).

Another issue considered by the Court was whether one of the defendants, Bovis, was liable as an agent for either the owner or general contractor under the Labor Law.  Since this is an issue that comes up fairly frequently in Labor Law cases, the Court's concise summary of the applicable legal standards is worthy of mention:

A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured...To impose such liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition... It is not a defendant's title that is determinative, but the amount of control or supervision exercised...(Internal citations and quotations omitted.)

The Court concluded that the record established that Bovis' role was one of general supervision only and that Bovis was only a general contractor or the City's statutory agent since the plaintiff failed to submit evidence demonstrating that Bovis had supervisory control over the plaintiff's, so as to enable it to prevent or correct any unsafe conditions.  Accordingly the Court upheld the dismissal of the  claims and cross-claims against Bovis.

Second Department Holds Insurance Company Out of Luck

In New York Univ. Hosp. Rusk Inst. v. Hartford Acc. & Indem. Co., 2006 NY Slip Op 06223, an individual sustained personal injury in an auto accident and sought medical treatment for his injuries at the plaintiff's hospital.  The plaintiff sent the defendants a hospital facility form (N-F5) and a UB-92 form, demanding payment of its $18,145.76 bill.  The defendant's ultimately denied a portion of the claim in letter form rather than the the prescribed denial of claim form (N-F10). 

At issue in this appeal was whether the defendants properly denied the claim.  The Court held that:

Contrary to the hospital's contention, [a] letter of disclaimer is permissible, provided that it is approved by the New York State Department of Insurance, issued in duplicate, and contains substantially the same information as the prescribed form which is relevant to the claim denied...Here, the defendants' September 28, 2004, letter adequately conveyed the information mandated by the prescribed form including, but not limited to, the precise ground on which the partial denial was predicated. However, the defendants failed to establish that the letter had been issued in duplicate and approved by the Department of Insurance (see 11 NYCRR 65-3.8[c][1], supra). Accordingly, having failed to pay or properly deny that portion of the hospital's claim within the statutory time frame, the defendants were precluded from interposing a defense. (Internal citations and quotations omitted).

Ouch!  That holding has to hurt, given that the disputed amount was $10,385.08.  It would seem that the safest way to issue a denial would be to simply use the proscribed form. 

I've learned that in the practice of law, taking a short cut is almost always a bad idea.  This case was no exception.

Second Department: Hospital Beds Shouldn't Collapse

In Aiosa v Mercy Med. Ctr., 2006 NY Slip Op 06140, the Second Department recently reinstated a medical malpractice claim against a nurse midwife and the ob/gyn group that employed her.  The claim was based upon injuries alleged to have occurred when the birthing bed upon which the plaintiff was laying collapsed three times immediately after she'd given birth.  Talk about bad timing. 

The trial court held that the defendants owed no duty of care to the plaintiff to safely operate the bed.  Not surprisingly, the Second Department reversed that decision: 

Contrary to the Supreme Court's determination, Fitzsimmons and OGS owed a duty to the plaintiff to avoid operating the birthing bed in an improper and unsafe manner that would cause the various segments of the bed to fold or collapse suddenly while a patient was on it.  The transcript of the plaintiff's deposition testimony...reflects her unambiguous testimony that the foot of the bed collapsed immediately after each of the two attempts made by Fitzsimmons to adjust and secure the foot segment of the bed. As a result, (defendants) failed in their moving papers to establish that they neither exercised control over the bed, nor caused the bed to collapse by their improper and unsafe operation. 

I think that conclusion is fairly self evident. Am I the only one surprised by the trial court's decision?   Of course there was a duty owed to the plaintiff in this situation.  And, absent allegations of a defect in the bed (and there was no indication of that type of claim in the decision), I think that at this stage of the proceedings, it's too early to conclude that the midwife was not at least partially liable for the plaintiff's alleged injuries.  If nothing else, there's a feasible res ipsa claim here, although I think that simple negligence could arguably apply as well.  Beds that are not defective don't just collapse, unless they're not being properly maintained or operated.   

Second Department Hold Labor Law s. 240 Applicable

In Lijo v. City of New York, 2006 NY Slip Op 05594, the Second Department considered the issue of whether the injured plaintiff was conducting work that fell within the ambit of Labor Law s. 240(1) at the time that he was injured. 

Prior to the accident, the plaintiff had worked for 3 months underground  on a sewer repair project in Queens.   2 days before the accident, a backhoe used in the project came into contact with overhead electrical wires, causing one of them to fall off of a metal hook and hang low to the ground.  Plaintiff was elevated in the bucket of a backhoe and was attempting to fix the broken wire when he fell nearly 25 feet to the ground.

The Court determined that the plaintiff was employed in the repair or alteration of the sewer line when he fell, since the work he was performing in fixing the electrical line was ancillary to those acts.  The Court stated that:

[I]t is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts... Here, at the time of the accident, the plaintiff and his coworkers were still in the process of finishing the restoration phase of the sewer repair project... The street excavation was still being backfilled with asphalt and there is a triable issue of fact as to whether reattaching the wire to the hook was required as part of the plaintiff's employer's contract with the City. Certainly, there is no bright line separating the enumerated and nonenumerated work.  (Internal citations and quotations omitted).

I think that the Court's decision is reasonable and in keeping with the underlying purpose of the Labor Law statutes, although it's certainly not a clear cut issue and is fact specific.  Given the facts of this case, the Court's decision makes sense to me.

Interesting Second Department Med. Mal. Decision

In Redmond v. Jamaica Hosp. Med. Ctr., 2006 NY Slip Op 03871, the Court did not look too kindly on the defendant's delay in responding to legitimate requests for medical records, to the ultimate detriment of the plaintiff, and found in the plaintiff's favor in addition to awarding the plaintiff a bill of costs.

In this case, the plaintiff initially requested medical records repeatedly for six months and ultimately was forced to file an order to show cause in order to obtain the records.  As a result, in order to avoid the expiration of the statute of limitations, the plaintiff filed suit against Jhon Doe #1 and 2, and thus, pursuant to CPLR 306-b(a), had 120 days from the date of filing to discover the identity of the unknown physicians.  The plaintiff ultimately sought an extension of the time in which to serve the defendants in the interests of justice.

The Court held that the extension was properly granted due to the defendant's lack of response to the plaintiff's repeated requests for information:

The plaintiff made diligent efforts to discover the identities of the physicians before and after filing to effectuate service. Her efforts culminated with two orders to show cause, one of which was withdrawn after finally receiving the records. Even when the hospital records were produced, on the last day the plaintiff had to timely serve, they were incomplete. One of the physicians never drafted an operative report. He finally completed it more than one month after the deadline for the plaintiff to serve, and 2½ years after the decedent's surgery. Under these circumstances, the plaintiff established good cause for the delay in service.

I'm not sure if the defendants were intentionally failing to respond to the plaintiffs, or if they were simply completely disorganized.  I found it surprising that the post-operative report was never completed.  That fact alone certainly points to dilatory tactics or at the very least, extreme disorganization bordering on carelessness.  If it was the latter, it certainly doesn't bode well for their defense of the lawsuit.

Second Department Considers Liability of NYC for Failure to Maintain Traffic Light

In Minemar v Khramova, 2006 NY Slip Op 03857, the plaintiff was stopped at a light behind a number of other cars.  The traffic light was apparently malfunctioning, and thus never changed from red to green. Each car waited approximately 30-60 seconds before entering the intersection.  The plaintiff did the same, looked down the intersecting one-way street before proceeding, and then entered the intersection, at which point he was struck by another vehicle driven by one of the defendants.

The plaintiff then filed a claim against, among others, the City of New York, and alleged that the City had negligently maintained the traffic light, thus proximately causing the accident.

I was somewhat surprised by the Court's holding:

In this case, where the plaintiff driver was fully aware of the malfunctioning traffic light and the consequent need to exercise caution in proceeding through the intersection, any negligence on the part of the City in maintaining the traffic light was not the proximate cause of the accident. Accordingly, the complaint insofar as asserted against the City should have been dismissed (see Bisceglia v International Bus. Machs., 287 AD2d 674, 676).

I haven't researched this issue, but it would seem to me that a jury could find that the accident would not have occurred but for the City's negligent maintenance of the traffic light, and thus liability should be apportioned between the City and any other negligent parties. 

I realize that the plaintiff could very well bear some fault for the accident, but the City should bear some liability as well.  That the plaintiff was aware of the malfunction should not, in my mind, absolve the City of all liability.  At the very least, it should be an issue of fact for the jury to decide.

Second Department Holds That Plaintiff Failed To Prove Serious Injury

In Cerisier v Thibiu, 2006 NY Slip Op 03526, the defendant moved for summary judgment on the basis that the plaintiff had failed to establish that he had suffered from a serious injury as a result of a motor vehicle accident. 

In opposition to the motion, the plaintiff submitted an MRI which showed a bulging disc and affirmations from the plaintiff's treating physician and neurologist which were not based upon recent examinations.

The Second Department concluded that the plaintiff had failed to establish that he had sustained a serious injury within the meaning of Insurance Law s. 5102(d).  The Court stated that:

The magnetic resonance images of the plaintiff's cervical and lumbar spine which showed bulging discs, did not, alone, establish a serious injury (see Kearse v New York City Tr. Auth., supra; Diaz v Turner, 306 AD2d 241; see also Hernandez v Taub, [*2]19 AD3d 368). The mere existence of a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.

Accordingly, the Court granted the defendant's motion for summary judgment and dismissed the first cause of action. 

I wish that the Court had set forth the content of the physicians' affirmations.  It's unclear to me whether the affirmations contained no conclusions regarding the alleged physical limitations, or whether the Court is holding that any conclusions as to that issue are irrelevant since they're based on outdated physical examinations.

Second Department Reverses Conviction

In People v. Ocampo, 2006 NY Slip Op 02921, a jury found the defendant guilty of two counts of Sodomy in the First Degree, Aggravated Sexual Assault in the Second Degree,and Unlawful Imprisonment in the First Degree arising from allegations that the defendant was involved in a sexual encounter with an 18-year old illegal alien.   

The defendant's theory was that the complainant initiated the consensual encounter and sought money from the defendant in exchange for sex.  The trial court refused to allow defense counsel to question the complainant about the statements that led up to the encounter.  But, the court advised the defense counsel could ask the defendant about the statements, but then refused to allow the testimony on the grounds that the statements constituted inadmissible hearsay.

The Second Department concluded that the evidence was improperly excluded by the trial court, that the excluded testimony was neither speculative nor cumulative, and that the error was not harmless.  The Court stated that:

Proof aimed at establishing a motive to fabricate is never collateral and may not be excluded on that ground, but examination of witnesses to establish such a motive must proceed upon some good-faith basis...

Because the only two witnesses to the sexual encounter were the defendant and the complainant, whose stories differed markedly, this case turned solely on credibility. The jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the complainant's] testimony.  (Internal citations and quotations omitted.)

Accordingly, the Court reversed the judgment and ordered a new trial.

In my opinion, the Second Department's decision was clearly correct.  This evidence was pivotal to the defense proffered and the trial court's rulings on this issue are more than a bit circular and placed the defense in a lose-lose situation.  It seems so clear cut that I wonder if I'm missing a piece of the puzzle.  But then again, stranger things have been known to happen at trial.