A New York trial court recently denied defendants’ motion to compel plaintiff’s radiologist to produce Diffusion Tensor Imaging (DTI) control group data.
In Siracusa v. City Ice Pavilion, LLC, the plaintiff was injured while participating in an ALS Ice Bucket Challenge, held at a hockey rink owned and operated by the defendant. Plaintiff sustained a traumatic brain injury (TBI), allegedly at the fault of the defendant. Plaintiff underwent an MRI-DTI which was analyzed by Dr. Michael Lipton. Dr. Lipton’s DTI analysis lead to the conclusion that the plaintiff has abnormally low FA levels, which is consistent with traumatic axonal injury, although also consistent with other non-traumatic causes.
Defendant served a demand upon the plaintiff for authorizations to obtain the complete data set pertaining to the DTI examination. Plaintiff objected, taking the position that he was not required to disclose the statistical studies and data underlining the DTI and that the data set belonged to Dr. Lipton or Montefiore, not the plaintiff.
Defendant took the position that the data set was relevant and a necessary part of the MRI-DTI which must be disclosed. Defendant asserted that FA could not be determined to be either high or low without comparing the plaintiff’s data to the control group’s data. According to the defendant’s attorney: “The individual FA levels of each member of the control group, the data as to the ages and other demographics all affect the final opinions/conclusions about what the MRI-DTI examination allegedly establishes.” The Court authorized the defendant to file a discovery motion and an order to show cause directed to Dr. Lipton and Montefiore Medical Center.
The trial court noted that it had previously decided the issue raised by the motion. In the matter of Sylvestre Jean-Francois v the Port Authority of NY and NJ, the defendants sought from Dr. Lipton and the Albert Einstein College of Medicine the same data base information that the defense sought in Siracusa. In the prior case, the court quashed a subpoena demanding MRI-DTI data base information on several grounds. First, the court noted that the information requested was not under the control of Dr. Lipton. Secondly, the court found that Einstein would not be directed to comply with the subpoena as the court had found that DTI was acceptable as a reliable means of diagnosing traumatic brain injury and accepted in the medical community. Third, the court found that to extent that such data contains identifying information of the subjects of the studies, that data is confidential and protected by HIPAA.
The Siracusa court further noted that because the plaintiff had not designated Dr. Lipton as an expert witness but only as a treating radiologist, the defense could not successfully argue that they needed the database information, computer analysis, algorithms, and other matters for purpose of knowing the foundation for his expert opinion.
Accordingly, the defendant’s motion to compel was denied and the cross-motion filed by Dr. Lipton and Montefiore was granted.
