State of New York
Supreme Court : County of Monroe

James Dooley, President and CEO,
Finger Lakes Health System at
Geneva General Hospital,

Index No. 2002/382

SY-99-03-6574A
SY-99-07-8539A
_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case involves a subpoena issued by the state Board of Professional Medical Conduct, which is attempting to review documents from the records of the Committee for Physician's Health which were submitted by a doctor, currently under investigation, when he applied to work at Geneva General Hospital. The name of the subject doctor is not disclosed in papers available to the public; he is variously referred to as Dr. 03E and Dr. A. Dr. A worked briefly for Geneva General Hospital. He has been under investigation on and off for three years on allegations, some of them substantial, that he has engaged in inappropriate touching and sexual harassment of women, patients and others.

In 1999, during the course of this investigation but after determining that charges should be brought against Dr. A, the Board subpoenaed the records of his treating psychiatrist. A motion to quash this subpoena was brought before Justice Hugh Gilbert, who determined that the broad powers granted the Board in Public Health Law § 230 prevailed over any privilege that attached to the communications between patient and psychiatrist. Justice Gilbert undertook an in camera review of the subpoenaed materials to determine their relevance to the investigation. Upon information and belief, no documents were ever released to the Board after this review.

After this decision Dr. A consulted with the Committee for Physician's Health, a self-help organization also established under Public Health Law § 230. When he applied for a job with the Geneva General Hospital he supplied at least one document from this Committee's file for confidential review. That document was kept in a separate file from his other credentialing documents, and the board, which continues to investigate Dr. A, now wants the hospital to produce it.

The hospital objects, stating that the document is privileged and cannot be disclosed under both the agreement with Dr. A and by the CPH's rules. Dr. A, who has appeared with his own counsel in this proceeding, agrees that he did not waive confidentiality by allowing the hospital to see this document.

The Board, on the other hand, argues that the document in question is not something produced within the Committee for its purposes but is a hospital document, supplied to the hospital for employment purposes. The Board maintains that Dr. A has waived any privilege by disclosing it to the hospital, because one cannot waive a privilege in part; once information is disclosed to a third party it cannot be protected from inquiries by any other party. The Board also argues that the confidentiality agreement is oral and of unlimited duration, and is thus unenforceable because of the Statute of Frauds.

The Committee for Physicians' Health, as noted above, is authorized by Public Health Law § 230 (11), which sets out stringent and specific requirements about the confidentiality of its records:

* (g) Any physician committee of the Medical Society of the State of New York, the New York State Osteopathic Society or a county medical society referred to in subparagraph (ii) of paragraph (c) of this subdivision shall develop procedures in consultation with, and approved by, the commissioner of the department of health, including but not limited to the following:

(i) The committee shall disclose at least once a month such information as the director of the office of professional medical conduct may deem appropriate regarding reports received, contacts or investigations made and the disposition of each report, provided however that the committee shall not disclose any personally identifiable information except as provided in subparagraph (ii) or subparagraph (iii) of this paragraph.

(ii) The committee shall immediately report to the director the name, all information obtained and the results of any contact or investigation regarding any physician who is believed to be an imminent danger to the public.

(iii) The committee shall report to the director in a timely fashion all information obtained regarding any physician who refuses to cooperate with the committee, refuses to submit to treatment, or whose impairment is not substantially alleviated through treatment.

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(vi) The committee, in conjunction with the director of the office of professional medical conduct, shall develop appropriate consent forms and disclosure proceedings as may be necessary under any federal statute, rule or regulation in order to permit the disclosure of the information as may be required under subparagraphs (ii) and (iii) of this paragraph.

Except as herein provided and notwithstanding any other provision of law, neither the proceedings nor the records of any such physician committee shall be subject to disclosure under article thirty-one of the civil practice law and rules nor shall any member of any such committee nor any person in attendance at any such meeting be required to testify as to what transpired thereat.

It may taken as a given, then, that these documents are not disclosable in their original status as CPH documents. The Board's case necessarily rests on a change of status effected by Dr. A's supplying the document at issue to Geneva General Hospital. The Board cites no case for its claim that one waives privileges all at once by waiving them in particular circumstances. Even if this correctly stated the law, though, the records of the CPH are confidential "notwithstanding any other provisions of law" except as provided in the section quoted above, and it is not clear that Dr. A can waive this provision. The Board also claims that the confidentiality agreement between Dr. A and the Hospital is unenforceable because of the Statute of Frauds, but this argument is not available to a stranger to the impeached agreement.

The Board cites Matter of Subpoenas Duces Tecum, 03B-BU-96-11 4259A, and 03-BU-97-07-3202A (Supreme Court, Erie County, not reported, affd 292 AD2d 847). This case dealt with a confidentiality agreement in the settlement of a civil suit. This is clearly of no application in a case where the confidentiality is granted and defined by statute; it does govern in cases of common-law privilege, however.

The Board's most telling argument appears only in its reply affirmation. In his papers Dr. A had said that the release of information to Geneva General Hospital from CPH was part of the Committee's function as an advocate for its clients, and was thus protected as an aspect of the Committee's normal activities. The Public Health Law, however, does not include advocacy for clients among the Committee's mandated tasks. The Committees are established to treat doctors with mental or behavioral problems, not to secure them employment. In addition, the CPH web site supports the view that the disclosure of information to a prospective employer requires a release. The Court agrees that once Dr. A consented to release the document to the hospital as part of his employment application, the document was no longer subject to statutory protection. It was then governed by a private confidentiality agreement, which like confidentiality agreements following a settlement or private psychiatric records can be overridden by the Board's needs.

Is there any conceivable relevance to this document? The Board's confidential affidavit, submitted for in camera review, contains numerous reports of Dr. A's conduct. It does not do more than attack his character. There is clearly enough evidence to bring a proceeding charging that Dr. A is guilty of professional misconduct, and in fact one has been pending for mare than three years. The question behind this subpoena is what need the Board has for the document in question.

It appears that the Board has requested the document to determine if Dr. A is mentally impaired. An earlier report, which had concluded that Dr. A did not suffer from a pattern of deviant sexual behavior, was based on a supposedly fraudulent claim by Dr. A that there had been no allegations of sexual abuse before 1998. There is no reason to suppose that the document in question has any genuine relevance to this question.

However, it cannot be said that the document has no bearing on the issues before the Board. In the end, this document must be treated the same way as the psychiatric records that were the subject of the proceeding before Justice Gilbert. The Hospital is therefore directed to supply the document or documents directly to the court, for in camera review. If the court finds it relevant it will order disclosure, upon such terms as may be appropriate. Counsel for the Board may prepare the order.

DATED: Rochester, New York

October 24, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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