92 A.D.2d 416 | N.Y. App. Div. | 1983
OPINION OF THE COURT
These lawsuits involve 600 separate unconsolidated actions and approximately 1,400 plaintiffs who claim to have suffered personal injuries as a result of exposure to chemicals escaping from the “Love Canal”. For pretrial and discovery purposes the parties and the court have treated these actions under the caption “In Re Love Canal Actions”. Defendants appeal from the denial of their joint motion for co-ordinated discovery of medical documents in possession of the New York State Department of Health.
By way of background,
In 1978 the Legislature adopted title XII of article 13 of the Public Health Law (L 1978, ch 487) and, because of the potential hazard believed to exist at the Love Canal landfill site (Public Health Law, § 1385), directed the Commissioner of Health to “conduct a study of * * * the * * * effects of health hazards associated with exposure to toxic substances emanating from certain landfills.” (Public Health Law, § 1386). The Legislature also authorized the commissioner to declare the existence of an emergency if he found “great and imminent peril to the health of the general
In the spring of 1978 the Department of Health began its investigation of the health complaints of the Love Canal residents. In order to study and evaluate these complaints, it prepared a questionnaire
The residents, at the time they completed the questionnaires, consented to their use for research purposes provided their identities were not revealed. Verbal assurances of confidentiality were also given by the department during the course of the investigation. Later, certain of the
In August, 1978 the Commissioner of Health declared a health emergency. Many of the residents were eventually relocated and their homes purchased by a State agency. A program was also commenced by the State of New York to contain the spread of toxic waste from the landfill.
Commencing in the fall of 1978, residents of the Love Canal area began to file notices of claim for personal injuries and property damage against the municipal defendants. The legal actions which are the subject matter of this appeal were commenced for the most part in 1979 and 1980.
The present appeal concerns the defendants’ request to inspect and copy documents in the custody of the Department of Health relating to the physical condition of the plaintiffs. Defendants assert that the illnesses claimed to have been caused by exposures to the toxic substances range through every organ system of the body and that each plaintiff has a unique exposure history in terms both of living in the Love Canal area and of their medical and life experience. Defendants contend that there are very difficult causation issues in each of these actions because of the different characteristics of the chemicals which have allegedly escaped, the lengths of alleged exposure to different levels of chemicals, the wide range of manifestation of claimed illnesses allegedly resulting from the exposures, and the real possibility that exposures to other causative agents or the existence of predisposing characteristics may explain the injury in each case. They claim that the Department of Health collected the medical data and engaged in broad discovery from the Love Canal residents for the express purpose of determining these causative factors, that the defendants should have equally broad access to the health data and that without this discovery their preparation for trial will be seriously prejudiced. They
At issue is whether the defendants can obtain discovery of this data and these documents assembled by the Department of Health, a nonparty to the litigation. Defendants contend on this appeal that the questionnaires may contain declarations which may constitute admissions; that the data is generally material and relevant to the defense of the actions; that plaintiffs, by bringing their actions and by authorizing the release of the data to certain governmental agencies, have waived any privilege that may exist; and that disclosure is not barred by the confidentiality requirements of section 206 (subd 1, par [j]) of the Public Health Law. They claim that this statute authorizes the commissioner to “receive reports on forms prepared by him” and that only such information must be kept confidential.
Special Term held that pursuant to section 206 (subd 1, par Q]) of the Public Health Law a privilege of privacy attaches to the documents in the possession of the Department of Health, that the documents are confidential and not subject to discovery, and that the plaintiffs have not waived this confidentiality by bringing their actions. The court further found that the defendants were free to seek the medical data pursuant to CPLR 3121, other than directly from the Department of Health. We affirm the order of Special Term for the reasons set forth below.
In our analysis we begin by considering section 206 (subd 1, par [j]) of the Public Health Law which provides in pertinent part as follows: “The commissioner shall * * * (j)
This statute plainly states that information imparted to the Commissioner of Health in connection with research or scientific studies designed to reduce “morbidity and mortality * * * shall be kept confidential”. An examination of the Bill Jacket discloses that one of the immediate purposes of the statute was to alleviate fears of hospitals and physicians that disclosure of medical records would subject them to civil suit. The statute is worded broadly and there is no indication that the pledge of confidentiality is not intended to encompass data obtained from any source.
Special Term held that the Legislature created a privilege of privacy for State conducted health emergency studies with two public policies in mind: “(1) protection of the privacy of the State’s citizens, and (2) the creation of an atmosphere of trust, to enable the Health Department to gather and compile complete health data it needs to carry out its statutory purpose.” We agree that the clear intent of the Legislature was to allow the Department of Health to freely conduct studies and research aimed at improving public health and upgrading the quality of medical care within the State (see, generally, NY Legis Ann, 1963, p 276). It obviously felt that a guarantee of confidentiality would insure the voluntary participation of others in such studies.
We hold that the provisions of section 206 (subd 1, par Q]) are plain and unambiguous and that there is no doubt that the information imparted to the commissioner in the questionnaires, which were prepared and disseminated by him, falls within the statutory proscription. The questionnaires are confidential and not subject to disclosure no matter how strong the showing of need or relevancy (see Cirale v 80 Pine St. Corp., 35 NY2d 113). That is what the statute says. The prohibition against disclosure is absolute. There are no qualifications, and no role in the disclosure of the information is given to plaintiffs.
It follows then that plaintiffs’ waiver of the physician-patient privilege by commencing the personal injury actions (see Koump v Smith, 25 NY2d 287) did not waive the prohibition against disclosure provided by section 206 (subd 1, par [j]). Likewise the limited authorizations executed by plaintiffs do not constitute a waiver of the privilege established by the section. This section, which was designed as a shield to protect the ability of the Department of Health to conduct essential studies, specifically prohibits the commissioner from violating the confidentiality attached to the records. Plaintiffs’ waiver of the
Arguably the same confidentiality and prohibition against disclosure would apply to the documents in the hands of the commissioner, other than the completed questionnaires, which the defendants seek to discover.
Although it is claimed that the records include information pertaining to illnesses and conditions unrelated to the personal injuries alleged by the plaintiffs in their lawsuits for which they seek to recover damages, there seems to be little question that certain of the information sought by defendants is material and necessary to the preparation of their defense.' This data, of course, may be helpful in identifying causal relationships between suspected risk factors and adverse health effects attributable to the al
This is not the case where a showing of hostility of a nonparty witness is offered to meet the special circumstances requirement or the case where a nonparty witness has primary information that will shed some light on the case. Here, the assembled information which defendants seek, other than the information imparted by the questionnaires, can be obtained from the source of the information, i.e., physicians, hospitals and plaintiffs, and through disclosure in the individual actions, including physical examinations if desired (see CPLR 3121). Defendants claim that they face an arduous task in assembling and reviewing the data and that it would be more convenient to obtain the materials from the Department of Health than from the plaintiffs’ physicians and hospitals and other normal channels. This hardly constitutes a showing of special circumstances. While it may be more convenient to obtain this information from the assembled records of the Department of Health, rather than from the custodians of the records, the defendants are neither constrained nor prejudiced in their efforts to prepare for trial. Even if we were to view the convenience of these defendants as a special circumstance, in view of the assurances which were given to plaintiffs that the material would be kept confidential,
Accordingly, since the information imparted by the questionnaires is confidential, and the burden of establishing that special circumstances are present is upon defendants and the granting of such motion is within the discretion of the court (3A Weinstein-Korn-Miller, NY Civ Prac, par 3101.32), we hold that the disclosure sought by the defendants from the Department of Health was properly denied and, therefore, the order should be affirmed.
Hancock, Jr., J. P., Callahan, Denman and Boomer, JJ., concur.
Order unanimously affirmed, with costs.
. For purposes of this appeal, the Department of Health has been granted the status of intervenor-respondent.
. See Matter of Mervak v City of Niagara Falls, 101 Misc 2d 68; Snyder v Hooker Chems. & Plastics Corp., 104 Misc 2d 735.
. Other special legislation included special property tax abatements in the Love Canal area (Real Property Tax Law, art 17 [L 1979, ch 42]) and establishment of an agency empowered to purchase the homes of Love Canal residents (General Municipal Law, § 501 [L 1979, ch 732]; § 950 [L 1980, ch 259]).
. The questionnaire sought certain specific demographic information, as well as information as to some 148 specific medical conditions, information concerning present complaints or symptoms, therapeutic history, residential history, occupational history, chemical exposure, social history, family history and patterns of hereditary illness.
. In 1963, the Legislature amended the statute to include, as purposes for the studies, not only the reduction of morbidity and mortality, but also the improvement of the quality of medical care within the State (L 1963, ch 326).
. Although we need not consider this issue, there is a public interest privilege which attaches to confidential communications to public officers in the performance of their duties where the public interest requires that such confidential communications not be divulged (see Cirale v 80 Pine St. Corp., supra). This privilege appears to apply to the information sought by these defendants (see Jones v State of New York, 58 AD2d 736). Moreover, certain information appearing on birth records and fetal death certificates is not copied into local registers, is confidential and its release is not authorized (see Public Health Law, §§ 4173, 4174; 10 NYCRR 35.2 [d], 35.3).