County Court, Nassau County, September 17, 2019

Dana Grossblatt for defendant.

Madeline Singas, District Attorney (Gregory Murphy of counsel), for plaintiff.

The defendant in this matter is charged as a juvenile offender (JO) in the Youth Part of the County Court in Nassau County. On April 15, 2019, he was indicted by a Nassau County grand jury and charged with one count of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]); one count of attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]); one count of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]); two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]); one count of criminal use of a firearm in the first degree (Penal Law § 265.09 [1] [a]); one count of criminal use of a firearm in the second degree (Penal Law § 265.08 [1]); one count of criminal possession of a firearm (Penal Law § 265.01-b [1]); and one count of reckless endangerment in the first degree (Penal Law § 120.25). The charges against the JO arise from his alleged involvement in a shootout which took place on March 13, 2019, in H., Nassau County, when the JO was 15 years old.

On or about July 23, 2019, the People served a so-ordered subpoena on S. Hospital for production of the JO's medical records, including X rays, photographs and any scans pertaining to the treatment or diagnosis of the JO for the time period March 13, 2019, to March 14, 2019. The People have asserted that, based upon representations made by hospital staff to law enforcement, the subpoenaed medical records relate to treatment the JO received for an injury he sustained in connection with a shooting. S. Hospital produced the records in response to the subpoena and the records are now in this court's possession.

The JO moved by notice of motion dated August 3, 2019, for an order quashing the People's subpoena. On August 28, 2019,{**65 Misc 3d at 756} the People filed opposition to the JO's motion, and on September 4, 2019, the JO filed a reply affirmation. The JO's motion to quash is determined as follows:

The JO, through counsel, objects to the People obtaining a copy of his medical records, arguing that they contain confidential information that is protected from disclosure under federal privacy laws (Health Insurance Portability and Accountability Act of 1996 [HIPAA]) and New York State's statutory physician-patient privilege (CPLR 4504). (Dana Grossblatt, Esq., affirmation, Aug. 3, 2019, ¶¶ 7-8; Dana Grossblatt, Esq., reply affirmation, Sept. 3, 2019, ¶ 7.)

The People oppose the JO's motion to quash and argue that, based on representations made by hospital staff to law enforcement, the JO sought medical treatment on March 13, 2019, for an injury sustained in the course of a shootout between the JO and another individual. (Gregory Murphy, Esq., affirmation in opp, Aug. 28, 2019, ¶ 8.) They further argue that his injury is evidence of criminality and that disclosure of his medical information is authorized under established exceptions to federal and New York State privacy laws. (Murphy affirmation in opp ¶¶ 8-11.) Specifically, they argue that the S. Hospital staff reported the JO's injury to law enforcement because they believed the injury was caused in the course of a shooting and Penal Law § 265.25, an exception to New York's statutory physician-patient privilege, requires medical providers to report certain wounds to police authorities. (Murphy affirmation in opp ¶¶ 11-13.)

The JO's counsel asserts in her reply that after she reviewed a copy of the subpoenaed medical records, she advised the People^[FN1] that the records did not support their argument that the hospital reported the injury to law enforcement because it was sustained during the course of a shooting. (Grossblatt reply affirmation ¶ 3.) Defense counsel further argues that the legislature takes seriously the privacy protections provided by CPLR 4504 and that in this case, the JO was not treated for any of the "quite specific" injuries enumerated under Penal Law § 265.25. (Grossblatt reply affirmation ¶ 7.)

The court finds that the JO has failed to establish that disclosure of his subpoenaed medical records violates the HIPAA Privacy Rule, as HIPAA permits disclosure of an individual's protected health information without the individual's prior authorization or consent for "law enforcement purposes"^[FN2] and for "judicial proceedings."^[FN3]

Turning to state privacy laws, New York's physician-patient privilege is codified in CPLR 4504 (a), which provides, as pertinent here, that unless a patient waives the privilege, a physician, nurse or hospital which has treated the patient "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." While the statutory privilege is "in derogation of the common law . . . [it] is to be given a 'broad and liberal construction to carry out its policy.' " (Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002].)

However, there is no constitutional right to the physician-patient privilege. (People v Greene, 9 NY3d 277, 280-281 [2007].) Notably, the legislature has enacted several statutory exceptions to the physician-patient privilege, including, as relevant here, Penal Law § 265.25. Such requires a physician or hospital to report to police authorities "[e]very case of a bullet wound, gunshot wound, powder burn or any other injury arising from or caused by the discharge of a gun or firearm." (Penal Law § 265.25 [emphasis supplied].) Contrary to defense counsel's argument, Penal Law § 265.25 does not narrowly define the types of firearm-related wounds that must be reported to police authorities. To the contrary, after specifically enumerating bullet wounds, gunshot wounds and powder burns, the statute broadly requires reporting of "any other injury arising from or caused by the discharge of a gun or firearm." (Penal Law § 265.25.)

{**65 Misc 3d at 758}To that end, the Court of Appeals has contrasted the broad scope of Penal Law § 265.25's reporting requirement for firearm-related injuries with the comparatively narrow scope for knife wounds, which must only be reported if "likely to or may result in death." (Penal Law § 265.25; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130, 136 [1983] ["(T)he fact that the legislatively declared exception for knife wounds is limited to those likely to result in death whereas any wound caused by discharge of a firearm must, under the Penal Law, be reported compels the conclusion that less serious knife wounds are not within the mandate of (Penal Law §) 265.25"] [emphasis supplied].)

In this case, the court has conducted an in camera review of the JO's subpoenaed medical records and agrees that they are devoid of any mention of the JO being treated for the firearm-related wounds specifically enumerated in Penal Law § 265.25 (i.e., bullet wounds, gunshot wound, or powder burn). However, in light of the all-inclusive "any other injury arising from or caused by" language contained in Penal Law § 265.25, the court finds that the JO's medical information is still subject to the statute's reporting requirement and is thus excepted from the statutory physician-patient privilege set forth under CPLR 4504. (See Matter of Grand Jury Investigation of Onondaga County, 59 NY2d at 136; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 532-533 [2002]; People v Rivera, 25 NY3d 256, 262 [2015] [finding that the legislature's intent to limit the physician-patient privilege with Penal Law § 265.25 is self-evident].)

Accordingly, the JO's motion to quash (seq No. 0000) is denied in its entirety and the subpoenaed medical records are hereby released to the People. However, the court further orders that, absent further order of this court or a court of competent jurisdiction, the parties are prohibited from using or disclosing the JO's medical records and the otherwise confidential information contained in those records, for any purpose other than this litigation.