A home care agency trying to fend off a negligence suit after the starvation death of a newborn has failed in its attempt to compel the Westchester County Department of Social Services to turn over records about the child’s care and death.
Westchester County Supreme Court Justice Francesca Connolly (See Profile) denied access to the records sought by the Visiting Nurse Services of Westchester Home Care, in an effort to support its argument that it could not be held liable for the death of Samantha Williams.
The plaintiff father, Samuel Bibbins, as well as other defendants, joined Visiting Nurse’s motion.
The social services department fought the proposed subpoena, saying disclosure would breach state rules that make the records confidential, except for a narrow range of entities.
In Bibbins v. Sayegh, 611/13, Connolly refused to sign off on the subpoena, finding rules permitting necessary discovery in a civil matter under CPLR 3101(a) did not overcome the confidentiality requirements written into Social Services Law.
“This court’s power, in the context of civil discovery, to order the production of ‘all matter material and necessary in the prosecution or defense of an action’ … is constrained, under the circumstances,” Connolly said in the July 17 ruling.
Samantha was six weeks old in 2009 when she died in the care of her mother, who is not a party in the suit.
According to a Westchester County District Attorney spokesman, the death was reviewed by the county’s child fatality review team and the Westchester prosecutors, who found no evidence of criminal conduct.
Bibbins filed his negligence and medical malpractice suit in 2013 against Visiting Nurses, Dr. Roger Sayegh and Riverside Pediatrics. He sued individually and as the administrator of his daughter’s estate.
Visiting Nurses raised the affirmative defense that Samantha’s injuries were caused by third parties over which it had no control over and said it needed the records to bear out the assertion.
The agency argued that Social Services Law §422(4)(A)(e) permitted the release of records to a “court, upon a finding that information in the record is necessary for the determination of an issue before the court.”
Moreover, it said Social Services Law §422-a allows disclosure of information on alleged abuse or maltreatment when disclosure is not contrary to the child’s best interests and where the child died.
In joining that argument, Bibbins claimed that the records could be produced to him in his status as the father and representative of his daughter’s estate.
The Department of Social Services said a decedent’s physician, medical services provider and civil litigants were not on the list of individuals and agencies afforded access to the records, and the court did not have the power to expand the list.
The department acknowledged one provision of the law could permit disclosure for “the subject of the report” and “other persons named in the report,” that did not include the estate of the deceased child. But it noted Bibbins had not directly asked for the records.
Connolly said that while the law enumerated individuals and entities allowed access to reports, such as physicians suspecting mistreatment, prosecutors, grand juries and judges, the Visiting Nurses did not fall into an eligible category.
While the agency argued it had access to the records via the judge’s review ability, the judge said the law did not specify a court’s re-disclosure powers.
Furthermore, Connolly said, other judges have “narrowly interpreted” the law to let the court “have access to such records ‘for its own use’ to decide a particular issue upon a specific finding of necessity, without permitting disclosure to others not specifically enumerated.”
With Bibbins joining its motion, the agency argued that he made a made the list of people allowed to see the records either as the “subject of the report” or “other persons named in the report.”
Connolly said the case’s record did not show if the documents generated in Samantha’s death had determined the inquiries into mistreatment were “unfounded” or “indicated.” Report subjects can get the records whether the case was substantiated or not. But others named in the report are not “explicitly entitled to access,” she said.
Even if Bibbins did have access, he could not confer that access to Visiting Nurses, said Connolly.
She noted Bibbins could directly ask the social services department for the records and seek judicial intervention if required, but added in a footnote that redisclosure prohibitions “along with the interest of justice, would likely prevent their use as evidence at trial.”
In addition to seeking the records directly, Visiting Nurses also attempted to get access to a summary of the investigation.
Connolly said that request should go directly to the social services department, which she noted had discretion in what it chose to reveal as it had to weigh factors like best interests of other children and family reunification efforts.
As a result, Connolly said, the county department was in the best place to weigh those factors. If it refused the disclosure request, the parties could later seek court intervention to void the determination through an Article 78 petition, she said.
Bibbins is represented by Sinel & Associates in Manhattan.
Kaufman Dolowich & Voluck in Woodbury represented Visiting Nurse Services.
Jason Corrado, senior associate at Gerspach Sikoscow in Manhattan represented Sayegh and Riverside Pediatrics.
Department of Social Services was represented by Assistant County Attorney Marissa Morra-Wynn. A county spokeswoman declined comment.