VININGS SPINAL DIAGNOSTIC v. PROGRESSIVE CASUALTY INSURANCE COMPANY (2006)

Upon the foregoing papers, and after a discovery conference, the motion by the defendant for an order inter alia compelling the plaintiff to provide discovery responses is granted to the extent that (1) the plaintiff shall provide responses to all outstanding discovery demands by January 31, 2007, and (2) the parties shall appear for depositions in Room 05 of the Supreme Court courthouse, 100 Supreme Court Drive, Mineola, New York, on or before February 28, 2007, at 9:30 a.m.;   the plaintiffs shall be deposed first, to be immediately followed by an individual produced by the defendant with personal knowledge of the facts.

This is an action to recover $3,905.03 in no-fault benefits provided by the plaintiff to its assignor in the form of inter alia nerve conduction studies.   The defendant concluded that these tests were medically not necessary and consequently refused to reimburse the plaintiff for the testing and services it provided to its assignor.

The defendant does not dispute that the plaintiff is entitled to disclosure of the assignor's no-fault file which the defendant has in its possession since these records are material and necessary to the prosecution of plaintiff's claim (see, Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 408, 288 N.Y.S.2d 449, 235 N.E.2d 430;  Beutel v. Guild, 5 A.D.3d 1087, 773 N.Y.S.2d 708;  Scott v. Albord, 289 A.D.2d 389, 734 N.Y.S.2d 623;  Hinrichs v. Tonnssen, 128 Misc.2d 196, 489 N.Y.S.2d 663).   The defendant contends, however, that based upon this court's holding in Westbury Medical Care P.C. v. Lumbermans Mut. Ins. Co., 5 Misc.3d 838, 786 N.Y.S.2d 685 (Asarch, J.), it cannot produce the no-fault file without a valid authorization from the assignor complying with the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”).

Notwithstanding this minor issue, the parties could not resolve their dispute over a narrow question which is discussed daily between practitioners in this field but apparently has not been officially reported upon in New York:  does the plaintiff have to pay the defendant for the cost incurred by the defendant in copying its no-fault file?   The defendant has demanded a $95.00 fee for copying the file even though it has not disclosed how many pages the file contains.   The plaintiff's attorney maintains that the plaintiff is entitled to have the file reproduced at no charge, arguing that “the only firm that requests a payment for the no-fault file is defendant's counsel.”   However, plaintiff's counsel did not cite in his brief any analogous precedent which would directly support its argument.   Plaintiff's attorney also argues that if this Court imposes a fee upon the plaintiff to obtain its assignors' no-fault file “it will set a precedent on both the plaintiff's and defendant's bar to charge each other for the cost of reproduction of documents.”   (See, Fletcher v. Atex Inc., 156 F.R.D. 45, n. 4).

The Court has broad discretion to set the terms and conditions of discovery (Castagnazzi v. Schlecker, 159 A.D.2d 533, 552 N.Y.S.2d 398).  CPLR 3103(a) permits a court to “make a protective order regulating the use of any discovery device.   Such order shall be designed to prevent unreasonable annoyance, expense, ․ or other prejudice to any person ․” A CPLR 3103 protective order is equally available in the District Court (as well as all lower courts) pursuant to § 1101(c) of the Uniform District Court Act (and the applicable lower court act) (see, Connors, Practice Commentaries McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3103, C3103:6 at 560).

Appellate courts have required a party to pay a reasonable cost for the reproduction of medical records, regardless of whether a party or non-party is in possession of those records (Colon v. City of New York, 285 A.D.2d 523, 524, 727 N.Y.S.2d 657) [defendants to reproduce plaintiff's medical records at a cost to the plaintiff at 25 cents per page];  McCrossan v. Buffalo Heart Group, 265 A.D.2d 875, 876, 695 N.Y.S.2d 852 [non-party health care provider cannot charge more than 75 cents per page for paper copies of records pursuant to Public Health Law § 18(2)(e) ];  Badach v. Caggiano, 255 A.D.2d 919, 680 N.Y.S.2d 387 [plaintiffs to pay for half the cost of obtaining duplicate copies of records and reports of treating and examining physicians which were acquired by the defendant through the authorizations provided by the plaintiffs];  Castagnazzi v. Schlecker, 159 A.D.2d 533, 552 N.Y.S.2d 398 [plaintiff to pay a reproduction fee of 25 cents per page plus $50.00 to the defendant for a duplicate copy of hospital records he obtained pursuant to the authorizations of the plaintiff];  McDonald v. State Univ. of New York, Downstate Med. Center (Univ. Hosp.), 129 A.D.2d 798, 514 N.Y.S.2d 789 [petitioner must either pay the fee sought by the appellant for the reproduction of the medical records, or photocopy the record herself;  if the latter option is chosen, she must pay a reasonable sum for the time spent by a hospital employee in supervising the copying].   Indeed, the rule in the Second Department that “the party seeking discovery of documents ․ should pay the cost of their reproduction”-is based upon the principle that “each party should shoulder the initial burden of financing his own suit” (Rubin v. Alamo Rent-A-Car, 190 A.D.2d 661, 663, 593 N.Y.S.2d 284;  see also, Schroeder v. Centro Pariso Tropical, 233 A.D.2d 314, 649 N.Y.S.2d 820;  Lipco Electrical Corp. v. ASG Consulting Corp., 4 Misc.3d 1019(A), 798 N.Y.S.2d 345, 2004 WL 1949062;  Siegel, New York Practice, § 353, p. 578 [4th ed. 2005] ).   However, the legislature contemplated that the party who ultimately prevails on the merits is permitted at that later time to tax as disbursements the expenses incurred in connection with disclosure and recover them from the losing side (see, e.g., CPLR §§ 8301(a)(1), (9);  Connors, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3103, (3103:5 at 559)).   The court can also exercise its protective powers under CPLR 3103(a) in cases where there is a disparity in the parties' economic resources, or where the expense of the disclosure greatly exceeds the small monetary recovery sought by the party (see, Connors, Practice Commentaries, supra at 559, 561).

After applying these principles to the facts and contentions at bar, the Court concludes that the plaintiff has failed to demonstrate any basis upon which there should be a deviation here from the precedent and general rule in this Department.   Accordingly, the Court directs the defendant to immediately inform the plaintiff's attorney of the actual number of pages contained in the assignor's no-fault file, and also directs the plaintiff to (1) provide the defendant's attorney, by January 31, 2007, with a HIPPA authorization executed by plaintiff's assignor, (see, Westbury Med. Care, P.C. v. Lumbermans Mut. Ins. Co., supra), and (2) exercise in writing to defendant's attorney by January 31, 2007, four options:  (a) to inspect the no-fault file at defendant's counsel's office and designate the pages to be reproduced at 25 cents per page, or (b) to inspect the no-fault file at the Supreme Court courthouse on the day designated for the depositions of the parties and photocopy in the courthouse the file or the designated portions thereof, or (c) to have the defendant photocopy the no-fault file at a cost to the plaintiff of 25 cents per page, and furnish the reproduced file to plaintiff's attorney by February 7, 2007, or (d) to pay the defendant the sum of $95.00 to photocopy and reproduce the no-fault file.

The plaintiff shall file a notice of trial by April 2, 2007.

The foregoing constitutes the Decision and Order of this Court.

So Ordered.

GARY F. KNOBEL, J.