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PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT).

The First Department determined plaintiff in this whistleblower action was entitled to discover medical records protected by the Health Insurance Portability and Accountability Act (HIPAA) and the Public Health Law (PHL). Plaintiff alleged he was fired, in violation Labor Law 740, in retaliation for complaining that defendant’s employees procured organs without performing tests and from people who still showed signs of life:

The records concerning these four individuals are material and necessary to plaintiff’s claim (see CPLR 3101[a]). To prevail on a claim for retaliatory termination in violation of Labor Law § 740(2), plaintiff must prove that he was fired because he objected to or threatened to disclose a practice that was in violation of a law or regulation … . The subject medical records will allegedly show that defendant pressured doctors to declare people dead in violation of regulations regarding the making of such determinations … .

… [B]ecause 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… .

… 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 … . It has not been expressly or implicitly waived in this case by the donors’ next of kin … . 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” … . 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 … . McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820, First Dept 5-29-18

​EMPLOYMENT LAW (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/LABOR LAW (WHISTLEBLOWERS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PRIVILEGE (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/CIVIL PROCEDURE (DISCOVERY, MEDICAL RECORDS,  PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/HIPAA (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/WHISTLEBLOWERS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/DISCOVERY (MEDICAL RECORDS, PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))/ORGAN TRANSPLANTS  (PLAINTIFF IN THIS WHISTLEBLOWER ACTION ENTITLED TO DISCOVER MEDICAL RECORDS WHICH ARE PROTECTED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AND THE PUBLIC HEALTH LAW (FIRST DEPT))

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