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Favor v. Horne11/6/2003
This opinion is uncorrected and subject to revision before publication in the Miscellaneous Reports.
(*1)
DECISION/ORDER
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this
MOTION TO EXAMINE SUBPOENAED HOSPITAL RECORDS
(*2)
Papers Numbered
Notice of Motion and Affidavits Annexed............................................
Order to Show Cause and Affidavits Annexed.....................................
Answering Affidavits..............................................................................
Affirmation in Opposition......................................................................
Notice of Cross Motion...........................................................................
Replying Affidavit of defendant.............................................................
Exhibits.....................................................................................................
Other.......................................................................................................
Defendant's counsel had appeared on September 11, 2003 in the clerk's office of the courthouse seeking to examine and copy subpoenaed hospital records of the plaintiff in preparation for a trial of the above matter. The subpoenaed records were delivered to the courthouse pursuant to CPLR 2306(b). Counsel was given two forms by the court clerk to be completed before being permitted to examine the records. One form, labeled "Affidavit In Support Of A Requisition For An Order For The Examination Of Subpoenaed Records," asks the person to identify himself or herself and disclose his or (*3)her relationship to the case. This form is then approved by a judge before examination of the records by the applicant. There is nothing inherently wrong with this procedure. It allows the Court to keep track of who in fact has inspected the file just in case, as happens on a rare occasion, part of the file decides to take a walk and gets locked out of the building. The court notes that although the form is called an "affidavit" there is no place on the document for a notarization or other indication that some one issued an oath to the affiant. It also does not contain the language which would permit an attorney to examine the file by making an affirmation only (CPLR 2106).
The second form which the clerk is asking attorneys to complete is the one that is troublesome. It is designated "Waiver and Authorization." It requires that either the plaintiff or the defendant as well as their counsel consent to have opposing counsel review medical records subpoenaed to court usually by the party that is now in fact seeking to examine them. The form indicates that its purpose is to "absolve the above-listed persons from liability under Public Health Law, Article 27-F, Sections 2780-2787". The document requires the signature of the plaintiff or defendant and their counsel. Although not labeled an affidavit, the "Waiver and Authorization" does contain the standard jurat for a notary . The clerk adopted this procedure as a result of a memorandum issued by Judge Charles E. Ramos dated February 2,1993 when he was the supervising judge of Civil Court New York County. In that memorandum Judge Ramos stated: "Confidential information contained in medical records shall not be disclosed (*4)without an order of the court, after all parties have been afforded an opportunity to be heard on consent."
The intention of the Public Health Law, Judge Ramos and the clerk is to protect the confidentialit
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