3101

McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820 [1st Dept. 2018]

Disclosure of these records is not prohibited by federal law. Although defendant is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA) (see 45 CFR 160.102; 160.103), it is authorized to receive medical records from covered entities "for the purpose of facilitating organ, eye or tissue donation and transplantation" (45 CFR 164.512[h]). It is also required to abide by HIPAA's privacy protections pursuant to New York Public Health Law (PHL) § 4351(8), which provides, "Any employee or agent of a federally designated organ procurement organization, eye bank or tissue bank . . . shall be held to the same standard of confidentiality as that imposed on employees of the hospital." However, because the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA (see 45 CFR 164.512[e][1][ii][B], [iv], [v]).

Nevertheless, PHL § 4351(8) renders defendant's documents subject to the protections of the physician-patient privilege set forth at CPLR 4504. This privilege is personal to the patient and is not terminated by death (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 53 [2016]). It has not been expressly or implicitly waived in this case by the donors' next of kin (see Perez v Fleischer, 122 AD3d 1157, 1159 [3d Dept 2014], lv dismissed 25 NY3d 985 [2015]). However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that "the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality" (see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 AD3d 596, 597 [2d Dept 2006]; accord Cole v Panos, 128 AD3d 880, 883 [2d Dept 2015]). Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public (see Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 176 [2d Dept 1989]).

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