IN RE: the Appointment of a GUARDIAN OF the Person and Property of DEREK.

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Surrogate's Court, Broome County, New York.

IN RE: the Appointment of a GUARDIAN OF the Person and Property of DEREK.

Decided: June 27, 2006

Mental Hygiene Legal Service, Binghamton (A. Laura Bevacqua of counsel), for Derek. Hinman, Howard & Kattell, LLP, Binghamton (Alyssa Barreiro of counsel), for petitioners.

The mother and father of Derek have petitioned to be appointed as his guardians under Article 17A of the Surrogate's Court Procedure Act on the grounds that he is developmentally disabled.   MHLS has appeared as counsel for Derek and opposes the petition.

Derek was assaulted while traveling in Spain in 2003 when he was 19 and suffered a traumatic brain injury and spinal cord injuries resulting in paraplegia.   It is alleged he also suffers from depression, delusions, poor impulse control and inability to make reasoned decisions.   At the time of the petition, Derek was a patient on the psychiatric unit of Binghamton General Hospital.

Derek has now moved by his attorney to strike the affirmations of the two physicians submitted with the petition and dismiss the petition.   The affirmations have been filed as required by SCPA § 1750-a.   One affirmation was by Dr. Factourovich, Derek's treating psychiatrist, and the second was by Dr. Major the supervising psychiatrist at the hospital.   Both physicians indicated in their affirmations that they had reviewed the records maintained by the hospital about Derek.   The basis of the motion is that the affirmations violate the physician patient privilege set forth in CPLR § 4504.   The application of the privilege to Article 17A proceedings is a matter of first impression in New York.

 The physician patient privilege is a rule of evidence in New York and is applicable to all types of communication by the patient to the physician in his professional capacity.   Several cases have considered the availability of the privilege when a guardian was sought under Article 81 of the Mental Hygiene Law. Those cases, except for one early case, have uniformly held that the privilege applies in contested guardianship proceedings unless the respondent affirmatively places his or her medical condition in issue.   Matter of Rosa B.-S., 1 A.D.3d 355, 767 N.Y.S.2d 33 (2d Dept.2003);  Matter of Bess Z., 27 A.D.3d 568, 813 N.Y.S.2d 140 (2d Dept.2006);  Matter of Tara X, N.Y.L.J. 2/18/96 p. 27, col.1 (Sup.Ct. Suffolk Co.);   Matter of Seidner, N.Y.L.J. 10/8/97 p. 28, col.4;  contra, Matter of Goldfarb, 160 Misc.2d 1036, 612 N.Y.S.2d 788 (Sup.Ct. Suffolk Co.1994);  See also Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 536 N.E.2d 1126 (1989) (In a personal injury case, unless the defendant affirmatively places his or her medical condition in issue the physician patient privilege prevents disclosure).   Derek has not placed his condition in issue.   As stated by Justice Prudenti in her seminal decision Tara X:  “To hold otherwise would afford respondents in Article 81 proceedings a modicum of due process which falls below that afforded their counterparts in other legal proceedings and would effectively nullify the heavy quantum of proof imposed upon the petitioners seeking guardianship over non-consenting persons ․” Matter of Tara X, supra.

This court has previously indicated that “the equal protection provisions of the Federal and State Constitutions would require that mentally retarded persons in a similar situation be treated the same whether they have a guardian appointed under Article 17A or Article 81.”  Matter of B., 190 Misc.2d 581, 738 N.Y.S.2d 528 (County Court, Tompkins County, 2002).  “The essence of the right to equal protection of the laws is that all persons similarly situated are treated alike.”   20 N.Y. Jurisprudence 2d “Constitutional Law” § 342, p. 483.   The U.S. Supreme Court has held that a rational basis standard applies to determine if distinctions in the state law affecting the retarded comply with equal protection.  Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985);  Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).

The legislature has recognized that the equal protection clause applies to persons with mental disabilities by stating:

“No health care decision shall be influenced in any way by:

(i) a presumption that persons with mental retardation are not entitled to the full and equal rights, equal protection, respect, medical care and dignity afforded to persons without mental retardation or developmental disabilities.”  (Emphasis added) SCPA § 1750-b(2)(c).

There is no rational reason why the respondent in a contested Article 81 guardianship proceeding should be allowed to assert the physician patient privilege while the respondent in a contested Article 17A guardianship proceeding cannot.   Similarly, there is no rational reason why a respondent who is alleged in a guardianship proceeding to be developmentally disabled should have any different right to assert the privilege from a respondent who is alleged to be mentally retarded.   In all three cases, mentally retarded, developmentally disabled or incapacitated person, the ultimate finding to be made by the Court is that the respondent is unable to manage his or her personal or property affairs because of a lack of capacity.   MHL § 81.02(b)(1);  SCPA § 1750(1);  SCPA § 1750-a(1).

As indicated by Justice Prudenti in Tara X, the due process clause of the Federal and State Constitutions would also prohibit a distinction in the application of the physician patient privilege in the two types of guardianship proceedings.  “Substantive due process affords protection against statutes that are arbitrary or unequal in their operation.”   20 N.Y. Jurisprudence 2d “Constitutional Law” § 396, p. 558.  Matter of Spielvogel v. Ford, 1 N.Y.2d 558 at 562, 154 N.Y.S.2d 889, 136 N.E.2d 856 (1956).   It would certainly be arbitrary to say that the respondent against whom a proceeding for the appointment of a guardian is brought can assert the physician patient privilege in one type of proceeding, but not the other.   That would be unequal operation of the law violative of due process.

 In addition, the rules regarding confidentiality of patient information apply to Derek.   Under the regulations for the Health Insurance Portability and Accountability Act (HIPAA) a health care provider, which includes doctors and hospitals, may disclose information about a patient upon authorization by the patient or pursuant to a court order.  45 C.F.R. §§ 160.103, 164.508 and 164.512(e).   In similar fashion, MHL § 33.13(c) provides that the records maintained by a mental health facility, which includes the psychiatric ward of a hospital (MHL § 1.03(6)), shall be disclosed only upon consent by the patient or court order.   There was neither consent by Derek nor a court order in this case.   Both physicians in their affirmations referred to the hospital records and thus the affirmations violated both the HIPAA regulations and the Mental Health Law.

 The Court holds that the physician patient privilege applies in contested Article 17A guardianship proceedings just as it does in contested Article 81 proceedings.  Matter of Rosa B.-S., supra;  Matter of Bess Z., supra. As a result, the affirmations of Dr. Factourovich and Dr. Major must be stricken from these proceedings because of failure to observe both the physician patient privilege and the patient confidentiality rules.

Of course, virtually all Article 17A proceedings are uncontested.   The two certifications required by the statute are ordinarily provided by the doctors treating the mentally retarded or developmentally disabled person.   Thus the holding in this case is limited to contested proceedings.

 However, just because the two affirmations are stricken does not mean the proceeding should be dismissed.   There are sufficient allegations in the petition to create a question of fact as to whether Derek is developmentally disabled.   Allegations such as that he is unable to make simple decisions, has refused medication and refused to attend scheduled medical appointments, has refused to sign papers to secure medical benefits or to waive his student loan default.   Most significantly it is alleged that while living at home in December 2005 he “became increasingly isolated, spending more and more time locked in his room over the course of approximately two weeks.”   These allegations are sufficient to present triable issues of fact and so the motion to dismiss is denied.  Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957);  Wanger v. Zeh, 26 A.D.2d 729 (3d Dept.1966).

 Furthermore just because the two physicians' affirmations which were submitted were stricken does not mean petitioners should not be given an opportunity to have Derek examined by two other non-treating physicians in order to provide the certifications required by SCPA § 1750-a.   Derek is required to cooperate and answer questions put to him by the examining physicians in a pre-hearing interview.  Ughetto v. Acrish, 130 A.D.2d 12, 518 N.Y.S.2d 398 (2d Dept.1987) appeal dismissed 70 N.Y.2d 871, 523 N.Y.S.2d 497, 518 N.E.2d 8 (1987).   Of course, such examining physicians should not be given access to Derek's medical records without a court order or patient consent.

This decision constitutes the Order of the Court.