MCMAHON v. NJ (2018)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered April 7, 2017, which granted plaintiff's motion to compel defendant to produce documents in response to Demand No. 1 of his Fifth Demand for the Production of Documents (erroneously referred to as Demand No. 5 of Plaintiff's Sixth Demand) in accordance with the parties' confidentiality order, unanimously modified, on the law, to direct that all identifying patient information be redacted, and otherwise affirmed, without costs.

Plaintiff alleges that defendant, a federally designated organ procurement organization (OPO), fired him, in violation of Labor Law § 740(2), in retaliation for his complaining that defendant's employees procured organs without performing legally required tests and from individuals who still showed signs of life.  In the complaint, plaintiff identified four individuals whose organs were allegedly improperly procured.

The records concerning these four individuals are material and necessary to plaintiff's claim (see CPLR 3101[a] ).  To prevail on a claim for retaliatory termination in violation of Labor Law § 740(2), plaintiff must prove that he was fired because he objected to or threatened to disclose a practice that was in violation of a law or regulation (Labor Law § 740[2];  Webb–Weber v Community Action for Human Servs., Inc., 23 N.Y.3d 448, 452–453, 992 N.Y.S.2d 163, 15 N.E.3d 1172 [2014] ).  The subject medical records will allegedly show that defendant pressured doctors to declare people dead in violation of regulations regarding the making of such determinations (see Department of Health Regulations [10 NYCRR] § 400.16).

Disclosure of these records is not prohibited by federal law.  Although defendant is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA) (see 45 CFR 160.102;  160.103), it is authorized to receive medical records from covered entities “for the purpose of facilitating organ, eye or tissue donation and transplantation” (45 CFR 164.512[h] ).  It is also required to abide by HIPAA's privacy protections pursuant to New York Public Health Law (PHL) § 4351(8), which provides, “Any employee or agent of a federally designated organ procurement organization, eye bank or tissue bank ․ shall be held to the same standard of confidentiality as that imposed on employees of the hospital.”  However, because the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA (see 45 CFR 164.512[e][1][ii][B], [iv], [v] ).

Nevertheless, PHL § 4351(8) renders defendant's documents subject to the protections of the physician-patient privilege set forth at CPLR 4504.  This privilege is personal to the patient and is not terminated by death (Chanko v American Broadcasting Cos. Inc., 27 N.Y.3d 46, 53, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016] ).  It has not been expressly or implicitly waived in this case by the donors' next of kin (see Perez v. Fleischer, 122 A.D.3d 1157, 1159, 997 N.Y.S.2d 773 [3d Dept. 2014], lv dismissed 25 N.Y.3d 985, 9 N.Y.S.3d 177, 31 N.E.3d 594 [2015] ).  However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that “the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality” (see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 A.D.3d 596, 597, 807 N.Y.S.2d 409 [2d Dept. 2006];  accord Cole v. Panos, 128 A.D.3d 880, 883, 11 N.Y.S.3d 179 [2d Dept. 2015] ).  Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public (see Leibowitz v Bank Leumi Trust Co. of N.Y., 152 A.D.2d 169, 176, 548 N.Y.S.2d 513 [2d Dept. 1989] ).

Liew v. New York Univ. Med. Ctr., 55 A.D.3d 566, 865 N.Y.S.2d 278 (2d Dept. 2008), on which defendant relies, is distinguishable, because, although it involved organ donation, it did not address whether the circumstances of that case warranted overcoming the privilege.