
    In the Matter of William A. Hyman, Appellant, v. Jewish Chronic Disease Hospital, Respondent.
    Argued January 5, 1965;
    decided March 18, 1965.
    
      
      William A. Hyman, in person, and Edward J. Ennis and James M. O’Brien for William A. Hyman, appellant.
    I. This appeal presents a question of law for determination. (Dinny & Robbins v. Davis, 290 N. Y. 101; Matter of Brennan v. Board of Educ. of City of N. Y., 245 N. Y. 8; Matter of Baltimore Mail S.S. Co. v. Fawcett, 269 N. Y. 379.) H. Petitioner has an absolute, unqualified night to inspect all the records of respondent hospital of which he is a director. (Matter of Cohen v. Cocoline Prods., 309 N. Y. 119; Matter of Davis v. Keilsohn Offset Co., 273 App. Div. 695; Matter of Smith v. Republic Pictures Corp., 286 App. Div. 1000; Matter of Davids v. Sillcox, 297 N. Y. 355; Matter of Martin v. Martin Foundation, 32 Misc 2d 873; Kujek v. Goldman, 150 N. Y. 176.) III. Petitioner — a director of respondent — is respondent’s own representative. He is not an outsider. In giving him copies of the medical records, including the records of the experiments performed on the patients by the injection of live cancer cells, respondent would not be making a disclosure to a third person. Furthermore, the records would not be put in evidence in any judicial or other proceeding. Therefore, CPLR 4504 (a) is inapplicable. (Matter of City Council of City of N. Y. v. Goldwater, 284 N. Y. 296; Matter of Investigation of Criminal Abortions in County of Kings, 286 App. Div. 270; Rubin v. Equitable Life Assur. Soc. of U. S., 269 App. Div. 677; People v. Preston, 13 Misc 2d 802; Munzer v. Blaisdell, 183 Misc. 773, 269 App. Div. 970; Matter of Holmes v. United Mut. Life Ins. Co., 286 App. Div. 500, 2 N Y 2d 1001.) IV. It is essential for the protection of the rights of the patients as human beings that petitioner be permitted to examine the medical and experimental records of the patients on whom the cancer experiments were conducted. Petitioner cannot properly perform his duties as a director if any corporate records, including the patients’ charts, are withheld from him. (Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402; Matter of Glenram Wine & Liq. Corp. v. O’Connell, 295 N. Y. 336; Matter of Rockwell v. Morris, 12 A D 2d 272, 10 N Y 2d 721; Electrolux Corp. v. Val-Worth, Inc., 6 N Y 2d 556.) V. The concealment from the patients of the most significant fact that the material to be injected consisted of live cancer cells rendered impossible the giving of any informed consent by the patients. The experimenters were guilty of assault and battery for which the hospital would be liable. Also, the members of the board of directors might be subject to liability for knowingly permitting such assaults to continue. (Natanson v. Kline, 186 Kan. 393, 187 Kan. 186; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; McCandless v. State of New York, 3 A D 2d 600; Bing v. Thunig, 2 N Y 2d 656.) VI. There was no relationship of physician and patient between the experimenters and the patients, and the records pertaining to the injections and the results thereof were not information which he (the physician) acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity. (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106; Steinberg v. New York Life Ins. Co., 263 N. Y. 45.) VII. The medical experiments, without the patients’ informed consent, violated their Federal rights. (Rochin v. California, 342 U. S. 165; Breithaupt v. Abram, 352 U. S. 432; Anderson v. Moses, 185 F. Supp. 727; Teeval Co. v. Stern, 301 N. Y. 346.) VIII. The decision below prevents a director from performing his duties to police the medical activities of his hospital and permits the wrongdoer to violate the rights of patients with impunity. IX. The human rights of the captive human ‘ ‘ guinea pigs ’ ’ used as pawns in the unethical cancer experiments are proclaimed and protected by international agreement and declaration and such international covenants cannot be superseded by any city or State.
    
      Morris Ploscowe and Harvey I. Sladkus for respondent.
    I. Patients’ medical charts and records maintained by respondent hospital are within the privilege granted by CPLR 4504 (a). Information contained in such charts and records cannot be disclosed without the consent of the patients. Petitioner-appellant did not obtain the consent of the patients. Respondent hospital, therefore, has not failed to perform a duty as required by an article 78 proceeding. (Jaffe v. City of New York, 196 Misc. 710; McGrath v. State of New York, 200 Misc. 165; Matter of Investigation of Criminal Abortions in County of Kings, 286 App. Div. 270; Matter of City Council of City of N. Y. v. Goldwater, 284 N. Y. 296.) II. The language of CPLR 4504 (a) is unqualified and must be applied to a lay member of the board of directors of a voluntary hospital. Such a member of the board of directors does not have the legitimate interest in the contents of patient records and charts as to require a disclosure by the hospital without the consent of the patients. (McGrath v. State of New York, 200 Misc. 165; Westphal v. State of New York, 191 Misc. 688.) III. The confidential charts and records of patients should not be turned over to petitioner-appellant for inspection and photocopy since he, as a layman, is under no legal duty to refrain from disclosing such information to others. IV. The medical data contained in the patients’ charts and records concerning cancer research are within the physician-patient privilege. (Bauch v. Schultz, 109 Misc. 548; People v. Decina, 2 N Y 2d 133; Knights of Pythias v. Meyer, 178 N. Y. 63, 198 U. S. 508; Smart v. Kansas City, 208 Mo. 162; Benihan v. Dennin, 103 N. Y. 573.) V. The privilege provided for in CPLR 4504 (a) can be invoked in an article 78 proceeding (in the nature of mandamus). (Rubin v. Equitable Life Assur. Soc. of U. S., 269 App. Div. 677; People v. Preston, 13 Misc 2d 802; Revyuk 
      v. Dunbar, 12 Misc 2d 713.) VI. Confidential patient records of hospital patients are not encompassed within the rule giving a director of a business or membership corporation an absolute right to examine corporate books and records. (Matter of Cohen v. Cocoline Prods., 309 N. Y. 119; Matter of Davis v. Keilsohn Offset Co., 273 App. Div. 695; Matter of Smith v. Republic Pictures Corp., 286 App. Div. 1000; Matter of Davids v. Sillcox, 297 N. Y. 355; Matter of Martin v. Martin Foundation, 32 Misc 2d 873.) VII. Petitioner has no standing in this proceeding to act for the patients involved in the cancer research. He has no standing in the absence of fraud or bad faith to question the decision of the board of directors of respondent hospital. He has no standing to determine what is and what is not the proper practice of medicine. (Van Campen v. Olean Gen. Hosp., 210 App. Div. 204, 239 N. Y. 615; Leider v. Beth Israel Hosp. Assn., 33 Misc 2d 3, 13 A D 2d 746, 11 N Y 2d 205; Edson v. Griffin Hosp., 21 Conn. S. 55; Pyramid Life Ins. Co. v. Masonic Hosp. Assn. of Payne County, Okla., 191 F. Supp. 51.) VIII. Petitioner-appellant’s right to see confidential patient records cannot be justified on the ground that he may be personally liable for acts committed by the medical staff of respondent hospital; nor may his right to see patient records be justified because respondent hospital may be liable for the negligent or illegal acts of its employees. (Howell Mfg. Corp. v. Leiblein, 32 Misc 2d 50; Armour & Co. v. Celic, 294 F. 2d 432; Hinkle Iron Co. v. Kohn, 229 N. Y. 179.)
    
      Helen M. Clark for the Patients’ Aid Society, Inc., amicus curiœ.
    
    I. A director must be permitted to examine the hospital charts, including the experimental medical records of the patients used in the cancer experiments, in order to determine whether there has been any violation of the legal and ethical duties owed to the patients used in the cancer experiments and in order to determine whether the hospital which he represents may be subjected to liability because of the violation of the legal and ethical duties owed to the patients. (McCandless v. State of New York, 3 A D 2d 600; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Bing v. Thunig, 2 N Y 2d 656.) II. The relationship of physician and patient never existed between the cancer experimenters and the subjects of the experiments. The experiments were totally nontherapeutie and not conducted for the treatment of the patients but solely for the alleged acquisition of scientific knowledge. (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106; Fisher v. Fisher, 129 N. Y. 654.) III. A director has the duty to supervise, amongst other things, the medical acts performed at the hospital and to see to it that patients receive proper medical care. In order to fulfill this duty he must have access to all corporate records, which include the experimental medical records and hospital charts of the patients used in the cancer experiments. (Matter of Cohen v. Cocoline Prods., 309 N. Y. 119; Matter of Davis v. Keilsohn Offset Co., 273 App. Div. 695; Matter of Martin v. Martin Foundation, 32 Misc 2d 873.)
    
      Emanuel Hayt for the Hospital Association of New York State, amicus curiœ.
    
    I. The present controversy affects the orderly administration of all hospitals in the State. II. A lay trustee of a hospital is under no legal obligation to protect the confidentiality of medical records. (Matter of Investigation of Criminal Abortions in County of Kings, 286 App. Div. 270; Matter of City Council of City of N. Y. v. Goldwater, 284 N. Y. 296; Lorde v. Guardian Life Ins. Co. of America, 252 App. Div. 646; Smart v. Kansas City, 208 Mo. 162.) III. A hospital trustee has no personal responsibility for the medical care of patients. (Farrigan v. Pevear, 193 Mass. 147; Pepke v. Grace Hosp., 130 Mich. 493.) IV. Petitioner-appellant has no standing in this court to overrule the unanimous decision of the board of directors. (Van Campen v. Olean Gen. Hosp., 210 App. Div. 204, 239 N. Y. 615.)
   Chief Judge Desmond.

Special Term was correct in its holding that petitioner, being a director of a hospital corporation, is entitled as matter of law to an inspection of the records of the hospital to investigate into the facts as to alleged illegal and improper experimentation on patients (Matter of Cohen v. Cocoline Prods., 309 N. Y. 119; Matter of Martin v. Martin Foundation, 32 Misc 2d 873).

It is argued that the data as to such experiments on patients is privileged (CPLR 4504[a]) and that the patients have not waived the privilege. Any such confidentiality could be amply protected by inserting in the court’s order a direction that the names of the particular patients be kept confidential. Actually, the supposed strict secrecy does not really exist as to qualified persons since these records have been -seen, read and copied by numerous staff members and employees of the hospital and of the co-operating institution.

We are told that, since this petitioner director would not be personally liable for the wrongdoing of the hospital, he does not need such an inspection. However, the possibility of liability of the corporation of which he is a director entitles him to learn the truth about the situation on which such alleged liability may be predicated. Again, it is said that a director should not be allowed to act on behalf of the patients without their authority. We do not understand the petitioner to claim any such right of representation. He is carrying out his own duties as a director — to direct the affairs of the corporation.

It is argued, again, that an inspection is unnecessary since newly enacted rules of the hospital now require that written and informed consents -of the patients be obtained before experiment. This fact, however, cannot be an obstacle to this director’-s effort to learn the full truth as to what has been done in the past.

No one seriously questions the right and obligation of a membership corporation director to keep himself informed as to the corporation’s policies and activities so that he may do his duties and carry his responsibilities. Any necessary safeguards and protections can, in -the discretion of the Special Term, be provided by its order, including appropriate arrangements for concealing the names of individual patients if that appears to be necessary -or proper.

The order appealed from should be reversed, without costs, and the matter remitted to Special Term for further proceedings not inconsistent with -this opinion.

Scileppi, J. (dissenting).

I would affirm especially on the unique facts of this case: (1) The State Department of Education is inquiring into the matter; (2) the Kings County District Attorney has been alerted to the situation; (3) the petitioner already knows the facts underlying his contention that the injections were given without the informed consent of the subject patients; (4) the informed consent of the patients is now required, and (5) all administrative and financial records have been ordered turned over to the petitioner. Since petitioner is already in possession of the facts as to the manner in which the experiments were conducted, no further need for the inspection exists.

Judges Dye, Fuld and Burke concur with Chief Judge Desmond ; Judge Scileppi dissents in an opinion in which Judges Van Voorhis and Bergan concur.

Order reversed, etc.  