|||Supreme Court, Appellate Division, Third Department, New York
|||2000 NYSlipOp 04813, 2000.NY.0046546 <http://www.versuslaw.com>
|||May 11, 2000
|||JANE DOE, APPELLANT,
COMMUNITY HEALTH PLAN - KAISER CORPORATION, RESPONDENT, ET AL., DEFENDANT.
|||Counsel: Lee Greenstein (John T. Casey of counsel), Albany, for appellant.
Hinman, Straub, Pigors & Manning (Paul M. Collins of counsel), Albany,
|||Mercure, J.P., Spain, Carpinello, Graffeo and Mugglin, JJ.
|||The opinion of the court was delivered by: Mugglin, J.
|||Calendar Date: January 13, 2000
|||Appeals (1) from an order of the Supreme Court (Teresi, J.), entered May
27, 1998 in Albany County, which granted a motion by defendants Community
Health Plan - Kaiser Corporation and Ericka Klein to dismiss the amended
complaint against Klein and causes of action two through six against the
corporate defendant, and (2) from an order of said court, entered May 4,
1999 in Albany County, which, inter alia, granted a cross motion by the
corporate defendant for summary judgment dismissing the amended complaint
|||During the period from March 1996 to August 1996, plaintiff received services
from defendant Ericka Klein, a certified psychiatric social worker, at a
facility owned and operated by defendant Community Health Plan - Kaiser
Corporation (hereinafter CHP). Plaintiff commenced this action in November
1997 seeking to recover damages resulting from the alleged disclosure of
medical information contained in her patient file by defendant Christen
Adey, a medical records clerk employed by CHP. Plaintiff's amended complaint
alleged six causes of action based on the disclosure of confidential information:
(1) negligent disclosure of confidential information, (2) statutory right
of action for breach of confidentiality, (3) intentional revelation of confidential
information by a CHP employee, (4) inadequate policies and procedures, (5)
negligent supervision and training, and (6) the intentional infliction of
|||CHP and Klein jointly moved pursuant to CPLR 3211 (a) (7) to dismiss the
amended complaint in its entirety against Klein and the second through sixth
causes of action against CHP. By order entered May 27, 1998, Supreme Court
granted the entirety of the relief requested by CHP and Klein. Plaintiff
did not, however, file a notice of appeal from the order at that time. Following
joinder of issue by CHP and Adey with respect to the amended complaint,
plaintiff moved for partial summary judgment on the issue of liability based
upon the first cause of action asserted in the amended complaint for breach
of confidentiality, and CHP cross-moved seeking summary judgment dismissing
this remaining cause of action against it.
|||Due to the failure of Adey to oppose plaintiff's motion, Supreme Court
granted partial summary judgment on the issue of liability against Adey
and directed that the issue of damages proceed to trial immediately. As
to CHP, Supreme Court denied plaintiff's motion for partial summary judgment
and granted CHP's cross motion, relying on the doctrine of respondeat superior
to hold that, since the disclosure by Adey was not within the scope of her
employment, CHP was not liable for the alleged disclosure.
|||Plaintiff now appeals both from the order entered May 27, 1998 and the
order entered May 4, 1999 which granted CHP's motion for summary judgment
dismissing the remaining cause of action.
|||Initially, it is appropriate to examine the issue of the timeliness of
the appeal from the order entered May 27, 1998, because the failure to file
a timely notice of appeal deprives this court of any authority to hear and
determine the matter (see, Hecht v City of New York, 60 NY2d 57, 61; Austin
& Co. v Reichert Constr. Corp., 151 AD2d 851, lv denied 75 NY2d 704;
Glickman v Sami, 146 AD2d 671, lv denied 149 AD2d 458). Since the May 27,
1998 order was non-final as to CHP and plaintiff (it disposed of some, but
not all issues arising from the same set of facts), it is properly reviewable
with respect to CHP under the notice of appeal filed by plaintiff with regard
to the May 4, 1999 order of Supreme Court dismissing the remaining cause
of action alleged against CHP since that order constitutes a final judgment
(see, CPLR 5501 [a] ; Burke v Crosson, 85 NY2d 10, 15-16).
|||Next, we affirm the denial of plaintiff's motion for partial summary judgment
but reverse the grant of CHP's motion for summary judgment dismissing the
first cause of action against it. Initially, we observe that although plaintiff
employs the term negligence in the first cause of action, its gravamen is
fundamentally the breach of the fiduciary duty of confidentiality (see,
MacDonald v Clinger, 84 AD2d 482). More than 150 years ago, New York codified
the pre-existing common-law privilege for doctor patient communications
in order to nurture a relationship of trust in health care settings. CPLR
4504 codifies this duty to maintain the confidentiality of patient treatment
records. CHP, as a Public Health Law article 44 medical corporation, is
bound by the disclosure strictures which govern a physician patient relationship
(see, CPLR 4504 [a]). Moreover, the Legislature has also recognized the
legal duty of health maintenance organizations to preserve patient confidentiality
by enacting Public Health Law § 4410 (2), which prohibits the disclosure
of any information acquired in the course of rendering professional services.
The Legislature has further seen fit to extend privileged communication
protection to other health and mental health professionals, including as
is relevant here, social workers (see, CPLR 4508). This cloak of confidentiality
wraps around more than the health care professional who renders the services,
as CPLR 4508 (a) further directs, "nor shall any clerk, stenographer
or other person working for the same employer as the certified social worker
* * * be allowed to disclose any such communication or advice given thereon".
Adey, the clerical employee involved in the disclosure at issue, was employed
by CHP, the same employer as employed Klein, the social worker who treated
plaintiff (see, Matter of Jeanne TT., 184 AD2d 895, 897), and hence Adey
is also a person governed by the statute (see, id., at 897).
|||Although the statutes and regulations requiring physicians (and medical
corporations) to protect the confidentiality of patient information gained
during the course of treatment clearly express the State's public policy,
they do not constitute a basis upon which plaintiff may maintain a cause
of action against CHP since a private right of action springing from such
statutes has not been recognized (see, e.g., Waldron v Ball Corp., 210 AD2d
611, 613, lv denied 85 NY2d 803). Instead, the duty not to disclose confidential
personal information springs from the implied covenant of trust and confidence
that is inherent in the physician patient relationship, the breach of which
is actionable as a tort (see, Harley v Druzba, 169 AD2d 1001, 1002; Tigue
v Ginsberg, 146 AD2d 268, 271; MacDonald v Clinger, supra). Our court has
enunciated that "communications to be fostered in the social worker/client
relationship are confidential" and a "plaintiff is entitled to
invoke the privilege of professional confidence a breach of which is actionable
as a tort even though it arises from a contractual relationship" (Harley
v Druzba, supra, at 1002).
|||While a private cause of action may not be predicated on CPLR 4504, CPLR
4508 or Public Health Law §4410 (2), these statutes define and impose the
scope of the actionable duty of confidentiality which arises between certain
health care providers, such as CHP, and their patients. CHP, as a medical
corporation, can only act through its agents, servants or employees. Consequently,
the duty owed plaintiff by CHP to protect patient confidences, if breached,
makes CHP directly responsible. To hold otherwise would render meaningless
the imposition of such a duty on a medical corporation, since the wrongful
disclosure of confidential information would never be within the scope of
the employment of its employees.
|||We next determine that Supreme Court correctly denied plaintiff's motion
for summary judgment. We observe that in the absence of permission from
the patient, waiver or legal justification, there is no defense to a cause
of action seeking to recover damages for wrongful dissemination of confidences
by persons or entities upon whom such duty of protection is imposed. Although
CHP, in defense of this action, does not assert consent, waiver or legal
justification, this record is unclear as to the nature and extent of disclosure
made by CHP's employee, Adey, such that Supreme Court correctly denied plaintiff's
motion for partial summary judgment.
|||Lastly, we hold that Supreme Court correctly dismissed the second cause
of action for the reasons previously stated since none of the statutes pleaded
create any statutory right of action. Moreover, Supreme Court correctly
dismissed the third, fourth and fifth causes of action since these constitute
either a restatement of the first cause of action or are duplicative thereof.
Similarly, we find that Supreme Court properly dismissed the sixth cause
of action alleging intentional infliction of emotional distress. Conduct
alleged in the amended complaint is not so outrageous in character and so
extreme in degree as to go beyond all possible bounds of decency and to
be regarded as atrocious and utterly intolerable in a civilized community
(see, Murphy v American Home Prods., 58 NY2d 293).
|||Spain and Graffeo, JJ., concur.
|||Mercure, J.P. (concurring in part and dissenting in part).
|||Because we conclude that Supreme Court properly granted summary judgment
dismissing the first cause of action, we respectfully dissent from so much
of the majority's determination as would reinstate it.
|||In its effort to furnish plaintiff with a basis for recovery against defendant
Community Health Plan - Kaiser Corporation (hereinafter CHP), the majority
has merely selected fragments from various statutory provisions prohibiting
the unauthorized disclosure of confidential information necessarily gained
or imparted in connection with the rendering of professional health care
services and engrafted them on existing tort law. In so doing, it has fashioned
a hybrid cause of action, hitherto unknown to the law and bearing essentially
no resemblance to the one pleaded by plaintiff. The cause of action so created
not only provides plaintiff with a basis for recovery, it imposes strict
liability, thereby permitting plaintiff to recover against CHP for its nonprofessional
employee's disclosure of confidential information regardless of fault.
|||In MacDonald v Clinger (84 AD2d 482), the Fourth Department was faced
with the novel question of "whether a psychiatrist must respond in
damages to his former patient for disclosure of personal information learned
during the course of treatment" (id., at 482). In its detailed analysis,
the court considered a number of alternative grounds for recovery and expressly
rejected proffered theories based upon a right to privacy and, of primary
relevance here, public policy arising out of New York's "several statutes
and regulations requiring physicians to protect the confidentiality of information
gained during treatment" (id., at 484; see, e.g., CPLR 4504 [a]; 4507,
4508 [a]; Mental Hygiene Law §33.13 [c]; Public Health Law §2803-c  [f];
§2805- g ; § 4410 ; Education Law §6509 ; 8 NYCRR 29.1 [b] ).
Instead, the court adopted the rationale that a duty not to disclose confidential
personal information springs from the implied covenant of trust and confidence
that is inherent in the physician-patient relationship and breach of which
is actionable as a tort (MacDonald v Clinger, supra, at 485-487; see, Tighe
v Ginsberg, 146 AD2d 268, 271).
|||Based upon the underlying analysis, it is apparent that the cause of action
enunciated in MacDonald v Clinger (supra), and subsequently applied by this
court in an action against a certified social worker (Harley v Druzba, 169
AD2d 1001, 1001-1002), has its origin in the law of malpractice, arising
as it does out of the professional relationship of trust and confidence
that is "implicit in and essential to the doctor-patient relation"
(MacDonald v Clinger, supra, at 487). In fact, in a cogent concurring opinion,
then- Justice Simons contended that the cause of action being recognized
by the court was one for malpractice (see, id., at 488). In any event, there
can be no question that, in order to fit within the MacDonald rationale,
a claim must be asserted against a professional and arise out of that professional's
own breach of the duty of the confidentiality.
|||The majority's dilemma is thus made clear: it must find a means of extending
the theory of liability underlying MacDonald v Clinger (supra), first, to
a cause of action asserted not against a health care professional but against
the health maintenance organization that employed her and, second, arising
out of an unauthorized disclosure committed not by the professional but
by a nonprofessional clerical employee. Finding no substantive law to bridge
this gap, the majority predicates its analysis on statutory rules of evidence.
It is true that both CPLR 4504 (a) and Public Health Law §4410 (2) prohibit
a health maintenance organization's disclosure of information acquired in
the rendering of professional services by a person authorized to practice
medicine, registered professional nursing, licensed practical nursing or
dentistry. As relating to the treatment giving rise to the present action,
however, none of the specified professionals rendered any services to plaintiff.
More relevant to this case is CPLR 4508 (a), which imposes a corresponding
prohibition on certified social workers and, among others, a clerk working
for the same employer as the certified social worker.
|||Outwardly acknowledging that none of these statutory rules of evidence
provides a private right of action (see, MacDonald v Clinger, supra, at
484), the majority proceeds to an ultimate holding that belies that position:
|||* * * these statutes define and impose the scope of the duty of confidentiality
which arises between certain health care providers, such as CHP, and their
patients. CHP, as a medical corporation, can only act through its agents,
servants or employees. Consequently, the duty owed plaintiff by CHP to protect
patient confidences, if breached, makes CHP directly responsible. To hold
otherwise, would render meaningless the imposition of such a duty on a medical
corporation, since the wrongful disclosure of confidential information would
never be in the scope of one's employment.
|||Although by no means clear, it appears that the majority's intention is
to create a new common-law cause of action providing a remedy for the breach
of a statutory duty.
|||We seriously question the wisdom of having an intermediate appellate court
create a new legal remedy every time it discovers an unserved need. We also
cannot discern any meaningful distinction between a statute's creation of
a private right of action and a judicial recognition of a new common-law
cause of action based upon a violation of the very same statute. In our
view, the three- part analysis established in Burns Jackson Miller Summit
& Spitzer v Lindner (59 NY2d 314, 329-331) would apply in either case,
requiring that we make a reasoned determination as to whether (1) plaintiff
is one of the class for whose particular benefit the statute was enacted,
(2) recognition of a private right of action would promote the legislative
purpose, and (3) creation of such a right would be consistent with the legislative
scheme (id.; see, Mark G. v Sabol, 93 NY2d 710, 722; Sheehy v Big Flats
Community Day, 73 NY2d 629, 633). Under such scrutiny, the cause of action
fashioned by the majority fails.
|||It is noteworthy that Public Health Law § 4410 (2), *fn1
which squarely addresses a health maintenance organization's obligation
to protect the confidentiality of patient records, does not apply to confidential
information gained in the course of professional services rendered by a
certified social worker (compare, CPLR 4508 [a]). Even more damaging to
the majority's position is Public Health Law §4410 (1), *fn2
which has the effect of shielding health maintenance organizations from
liability for the "negligent or wrongful act or misconduct" of
its health care professionals. In our view, these express statutory provisions
lead to the inevitable conclusion that the majority's attempt to impose
liability upon a health maintenance organization for the disclosure of confidential
information imparted to a certified social worker is by no means consistent
with the legislative scheme in enacting Public Health Law §4410 (2), the
parallel provision of CPLR 4504 (a), or CPLR 4508 (a). JB.
|||As a final matter, it should be noted that plaintiff had a facial remedy
against CHP under her first cause of action (as pleaded by plaintiff and
not as transformed by the majority) but on the summary judgment motion failed
to raise a genuine factual issue as to whether CHP improperly trained the
culpable file clerk or whether the file clerk was acting in the scope of
her employment when she disclosed the information, and also that plaintiff
has obtained a judgment on the issue of liability against the party who
was actually responsible for her damages.
|||Carpinello, J., concurs.
|||ORDERED that the order entered May 27, 1998 is affirmed.
|||ORDERED that the order entered May 4, 1999 is modified, on the law, by
reversing so much thereof as granted the cross motion by defendant Community
Health Plan - Kaiser Corporation for summary judgment dismissing the first
cause of action in the amended complaint against it; cross motion denied;
and, as so modified, affirmed.
|||*fn1 Public Health Law §4410 (2) provides
in pertinent part:Unless the patient waives the right of confidentiality,
a health maintenance organization * * * shall not be allowed to disclose
any information which was acquired * * * in the course of the rendering
to a patient of professional services by a person authorized to practice
medicine, registered professional nursing, licensed practical nursing, or
dentistry, and which was necessary to acquire to enable such person to act
in that capacity, except as may be otherwise required by law. JB.
|||*fn2 Public Health Law §4410 (1) provides:The
provision of comprehensive health services directly or indirectly, by a
health maintenance organization through its comprehensive health services
plan shall not be considered the practice of the profession of medicine
by such organization or plan. However, each member, employee or agent of
such organization or plan shall be fully and personally liable and accountable
for any negligent or wrongful act or misconduct committed by him or any
person under his direct supervision and control while rendering professional
services on behalf of such organization or plan.
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