Upon the parties appearing for a Compliance Conference on June 21, 2022, and plaintiff’s request for permission to move to compel discovery, including unredacted discovery, the Court directed the defendant to submit a privilege log and contentions on or before June 28, 2022; and the Court directed the plaintiff to submit contentions on or before July 1, 2022. The parties conferenced the documents at issue with this Court on July 19, 2022. At issue is, as follows: Discovery demanded by plaintiff: the nonparty resident’s (1) Formal Behavioral Support Plan — Restrictive, which defendant contends should not be disclosed to plaintiff, and (2) Individual Plan of Protective Oversight, which defendant contends should be disclosed with appropriate redactions. Plaintiff, an employee of defendant, alleges negligent training and supervision of staff, wherein during COVID she was reassigned to a residential facility and assigned to be the primary provider for a specific patient, a nonparty to this action, with an alleged history of aggression and disobedience who attacked plaintiff causing personal injuries. Defendant does not contest that the nonparty resident is an individual with developmental disabilities as she was, and still is, assigned to a program that supports individuals with a wide range of mental and physical disabilities, and defendant does not contest that at times the resident displayed “aggressive” tendencies, which defendant asserts plaintiff was aware of prior to her time working with said resident. Defendant contends that the sensitive and medical/mental/physical health information contained in the documents sought by plaintiff is privileged and unlikely to elicit discoverable information. Defendant argues that the core of plaintiff’s complaint is based on “negligent hiring and negligent supervision” which would not warrant a review of the resident’s behavioral records and documents prepared by mental health coordinators and board-certified behavioral analysis. Defendant argues that the substance contained within the resident’s Formal Behavioral Support Plan — Restrictive qualifies as protected health information under HIPAA as it was created by healthcare professionals and relates directly to the resident’s past, present and future mental and physical conditions, and covers aspects of the resident’s mental and physical health conditions, specific behavioral management techniques, and current medication list. Defendant also argues that portions of the resident’s Individual Plan of Protective Oversight should remain redacted as it qualifies as protected health information. Defendant contends that the resident’s medical treatment plans and information should not be disclosed as it violates her right to privacy. Defendant argues that the resident is a non-party, incapable of providing consent or permission when it comes to disclosure of her medical records and unable to make decisions regarding her mental and physical health treatment and has an appointed legal guardian to act on her behalf. Lastly, defendant argues that if the Court determines that defendant must disclose the documents, it requests that the disclosure be limited in scope, conducted through an in-camera review and subject to a confidentiality agreement between the parties. Plaintiff argues that the resident’s history of aggressive behavior is a factual issue at the center of this case, and that defendant had knowledge of the resident’s aggressive tendencies and did nothing to ensure the plaintiff’s safety. Plaintiff contends that defendant’s failed to provide plaintiff with any insight, training, supervision, sufficient staff support and other procedures to protect herself from the aggressive behavior, and that the documents requested in unredacted form is reasonably calculated to yield information that is material and necessary to this case. Plaintiff claims that her request is limited to non-medical information contained in the resident’s medical record. Plaintiff seeks information regarding prior incidents of aggression, not information regarding diagnosis of any mental illness or medication list. Plaintiff argues that the information requested in the two documents in question contain handwritten notes by the staff that worked with the resident, not by a health care provider and does not refer to the mental health condition of the resident. Plaintiff states that she does not need the diagnosis of the resident’s illness, only the “aggressive acts” involving the resident, which cannot be used to identify the resident. Plaintiff is attempting to establish a pattern of aggressive acts of the resident who was assigned to plaintiff without any insight as to the specific behavior plan to manage the care of the resident in a safe manner. Discussion Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by…a party” (CPLR 3101 [a] [1]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101 [b]; No.Jayne v. Smith, 184 AD3d 557, 559 [2d Dept 2020]). Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (Jayne v. Smith, 184 AD3d 557, 559 [2d Dept 2020]; see CPLR 4504; Mental Hygiene Law §33.13[c][1]). However, ” [t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” (id.). Thus, the privilege is generally limited to “information acquired by the medical professional through application of professional skill or knowledge’” (No.id). Here, the nonparty resident is not a party to this action, she has not put in issue her physical or mental condition, her medical records are subject to the physician-patient privilege, and there is no indication that the nonparty has agreed to waive that privilege (Mullen v. Steven G. Wishner, 172 AD3d 1386, 1388-1389 [2d Dept 2019]). Notwithstanding the foregoing, privileged medical records may contain nonprivileged information that could be discoverable if relevant (No.id. at 1389). The proper procedure is for the Supreme Court to conduct an in camera review and inspection of the nonparty’s records, and for a determination of whether all or parts of the records produced by defendant contain unprivileged information of a nonmedical nature that are relevant to the issues placed in controversy by the plaintiff, which in this case relate to any prior assaults or similar violent behavior by the nonparty resident, that should be disclosed (id.; see also No.Sohan v. Long Island College Hosp., 282 AD2d 597, 598 [2d Dept 2001]). The Court has conducted an in camera review and inspection of the nonparty’s records, and has determined as follows: Upon review and inspection of the resident’s redacted and unredacted Individual Plan of Protective Oversight provided by defendant, the Court concludes that portions of the document redacted by defendant contain nonprivileged information which may be relevant to plaintiff’s claims herein, and the Court has redacted the unredacted document accordingly to disclose the nonprivileged information as well as the nonparty resident’s name which was not redacted. Upon review and inspection of the resident’s unredacted Formal Behavioral Support Plan — Restrictive, the Court concludes that there are portions of the document that contain nonprivileged information which may be relevant to the plaintiff’s claims herein, and the Court has redacted the document accordingly. Accordingly, it is hereby ORDERED that defendant disclose the Court’s redacted version of the non-party resident’s Individual Plan of Protective Oversight which protects the non-party resident’s privileged information and only discloses the nonprivileged information which may be relevant to the plaintiff’s claims herein; and it is further ORDERED that defendant disclose the Court’s redacted version of the non-party resident’s Formal Behavior Support Plan — Restrictive which protects the non-party resident’s privileged information and only discloses the nonprivileged information which may be relevant to the plaintiff’s claim herein; and it is further ORDERED that plaintiff shall draft a confidentiality stipulation, and upon agreement and execution of said agreement by the parties, within ten days defendant shall serve the Court’s redacted versions of the non-party resident’s Individual Plan of Protective Oversight and Formal Behavior Support Plan — Restrictive. The parties are directed to appear for a virtual Compliance Conference, as previously scheduled, on August 23, 2022 at 9:30 a.m., to certify, subject to confirmation by the virtual conference link emailed by this Court. Dated: August 2, 2022
