Case in Point
Tue, 24 Mar 2009 10:28:00
Driving Law Puts Brakes on Medical Privacy
People v. Elysee
Decided by: Court of Appeals, Feb. 17
At 5:00 a.m. on Christmas 2003, Fritz Elysee was involved in a four-car accident in Brooklyn. A passenger in a small truck was killed and several others, including Elysee, were severely injured. When Elysee arrived at King’s County Hospital for trauma care, a nurse drew a vial of blood in accordance with routine hospital practice.
Suspecting Elysee had been driving under the influence of alcohol, the NYPD sought a court order to draw blood. The order did not come for seven hours. By the time police obtained blood, Elysee’s blood had an alcohol content (BAC) of .05 percent, under the legal limit. Prosecutors then sought and obtained an order to get the 5:30 a.m. routine hospital test, which showed Elysee’s BAC was .23. He was charged with manslaughter, assault and driving under the influence.
At trial, Elysee argued that the 5:30 a.m. sample was protected by doctor-patient confidentiality. The law protects from disclosure “any information … acquired in attending a patient in a professional capacity … which was necessary to enable the [medical professional] to act.”
The trial court found the privilege inapplicable and convicted Elysee on all charges.
On appeal, New York’s highest court upheld the ruling, finding that language in the Vehicle and Traffic Law allows the police to override medical confidentiality when a motorist violates the law: “any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test [of] … blood … when … a person other than the operator was killed.” This provision, the court held, was stronger than the confidentiality provision. But the court’s ruling went further, allowing medical tests administered prior to a court order to be obtained. The court’s ruling leaves several important privacy questions unanswered, including how far back in time authorities can go to open medical records (seven hours for Elysee) by using this provision of motor-vehicle law.
Appellate Division “Sliding” Apart
Trupia v. Lake George School District
Decided by: Appellate Division, Third Department, March 5
Luke Stupia, a minor in Warren County, was sliding down a banister in July 2002 at a summer camp, when he fell and suffered a skull fracture. His family sued the school district that organized the camp. The trial court found against Luke, holding that he assumed the risk of his injuries by choosing to slide down the rail despite appreciating the risks he faced—in other words, Luke, in essence, “consented” to his injuries. Using this “assumption of the risk” doctrine, the trial court ruled for the school district.
On appeal, the Third Department reversed the trial judge’s decision and allowed Luke’s suit to proceed. Indeed, Luke was fortunate his injury occurred in Warren County, in New York’s Third Department of the Appellate Division—had he fallen in Buffalo, in the Fourth Department, his suit would have been barred.
The Third Department revived Luke’s suit by ruling that assumption of the risk only applies to injuries sustained during sporting or recreational activities (e.g., a fan being struck by a baseball at a game). The court found that the doctrine was meant to facilitate “free and vigorous participation in athletic activities.” The court recognized that New York’s other appellate divisions take a different view on this, however. In fact, a New Yorker’s ability to sue depends significantly on where he or she is injured in the state. In pointing out the split among the appellate courts, the Third Department seemed to call on the Court of Appeals or Legislature to sort out the viability of this centuries-old legal doctrine.
Whose Sperm Are They Anyway?
Speranza v. Repro Lab, Inc.
Decided by: Appellate Division, First Department, March 3
Six months before his death in January 1998, anticipating adverse effects from medical treatment, Mark Speranza deposited semen specimens with Repro Lab in Manhattan. When he made the deposit, he signed a document stating that, in the event of his death, the semen should be destroyed by Repro.
After his death, Mark’s parents, as executors of his estate, asked Repro to continue preserving the semen, saying they wished to find a surrogate mother to bear them a grandchild. The lab agreed to keep the sperm frozen, so long as the yearly fees were paid. Repro never informed the parents that Mark signed a document requesting they be destroyed.
In 2005, Speranza’s parents asked Repro to release the specimens, at which time the lab refused and produced Mark’s statement. The parents sued Repro alleging that the specimens were assets of Mark’s estate to be distributed by them.
But the Appellate Division disagreed with the parents’ contention, finding “no viable cause of action that would entitle them … to produce the child [Mark] did not create while he lived.” The court found the specimens were “not assets of the estate over which the administrators have possessory rights.” As with other estate property, Mark’s intent was of paramount importance.
The court supported its determination by noting that Department of Health regulations would forbid the use of the specimens even if the parents were correct on the estate issue. Since New York law requires all semen to be tested for disease and irregularity, and Mark’s were not, it would be against public policy to use them now. Still, the decision of Repro to keep the sperm alive for 11 years after Mark’s death and the very existence of multi-year litigation despite Mark’s signed statement raises questions about the clarity of New York law on these issues.
People v. Elysee
Decided by: Court of Appeals, Feb. 17
At 5:00 a.m. on Christmas 2003, Fritz Elysee was involved in a four-car accident in Brooklyn. A passenger in a small truck was killed and several others, including Elysee, were severely injured. When Elysee arrived at King’s County Hospital for trauma care, a nurse drew a vial of blood in accordance with routine hospital practice.
Suspecting Elysee had been driving under the influence of alcohol, the NYPD sought a court order to draw blood. The order did not come for seven hours. By the time police obtained blood, Elysee’s blood had an alcohol content (BAC) of .05 percent, under the legal limit. Prosecutors then sought and obtained an order to get the 5:30 a.m. routine hospital test, which showed Elysee’s BAC was .23. He was charged with manslaughter, assault and driving under the influence.
At trial, Elysee argued that the 5:30 a.m. sample was protected by doctor-patient confidentiality. The law protects from disclosure “any information … acquired in attending a patient in a professional capacity … which was necessary to enable the [medical professional] to act.”
The trial court found the privilege inapplicable and convicted Elysee on all charges.
On appeal, New York’s highest court upheld the ruling, finding that language in the Vehicle and Traffic Law allows the police to override medical confidentiality when a motorist violates the law: “any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test [of] … blood … when … a person other than the operator was killed.” This provision, the court held, was stronger than the confidentiality provision. But the court’s ruling went further, allowing medical tests administered prior to a court order to be obtained. The court’s ruling leaves several important privacy questions unanswered, including how far back in time authorities can go to open medical records (seven hours for Elysee) by using this provision of motor-vehicle law.
Appellate Division “Sliding” Apart
Trupia v. Lake George School District
Decided by: Appellate Division, Third Department, March 5
Luke Stupia, a minor in Warren County, was sliding down a banister in July 2002 at a summer camp, when he fell and suffered a skull fracture. His family sued the school district that organized the camp. The trial court found against Luke, holding that he assumed the risk of his injuries by choosing to slide down the rail despite appreciating the risks he faced—in other words, Luke, in essence, “consented” to his injuries. Using this “assumption of the risk” doctrine, the trial court ruled for the school district.
On appeal, the Third Department reversed the trial judge’s decision and allowed Luke’s suit to proceed. Indeed, Luke was fortunate his injury occurred in Warren County, in New York’s Third Department of the Appellate Division—had he fallen in Buffalo, in the Fourth Department, his suit would have been barred.
The Third Department revived Luke’s suit by ruling that assumption of the risk only applies to injuries sustained during sporting or recreational activities (e.g., a fan being struck by a baseball at a game). The court found that the doctrine was meant to facilitate “free and vigorous participation in athletic activities.” The court recognized that New York’s other appellate divisions take a different view on this, however. In fact, a New Yorker’s ability to sue depends significantly on where he or she is injured in the state. In pointing out the split among the appellate courts, the Third Department seemed to call on the Court of Appeals or Legislature to sort out the viability of this centuries-old legal doctrine.
Whose Sperm Are They Anyway?
Speranza v. Repro Lab, Inc.
Decided by: Appellate Division, First Department, March 3
Six months before his death in January 1998, anticipating adverse effects from medical treatment, Mark Speranza deposited semen specimens with Repro Lab in Manhattan. When he made the deposit, he signed a document stating that, in the event of his death, the semen should be destroyed by Repro.
After his death, Mark’s parents, as executors of his estate, asked Repro to continue preserving the semen, saying they wished to find a surrogate mother to bear them a grandchild. The lab agreed to keep the sperm frozen, so long as the yearly fees were paid. Repro never informed the parents that Mark signed a document requesting they be destroyed.
In 2005, Speranza’s parents asked Repro to release the specimens, at which time the lab refused and produced Mark’s statement. The parents sued Repro alleging that the specimens were assets of Mark’s estate to be distributed by them.
But the Appellate Division disagreed with the parents’ contention, finding “no viable cause of action that would entitle them … to produce the child [Mark] did not create while he lived.” The court found the specimens were “not assets of the estate over which the administrators have possessory rights.” As with other estate property, Mark’s intent was of paramount importance.
The court supported its determination by noting that Department of Health regulations would forbid the use of the specimens even if the parents were correct on the estate issue. Since New York law requires all semen to be tested for disease and irregularity, and Mark’s were not, it would be against public policy to use them now. Still, the decision of Repro to keep the sperm alive for 11 years after Mark’s death and the very existence of multi-year litigation despite Mark’s signed statement raises questions about the clarity of New York law on these issues.
