Do I have a right through the courts to receive my daughters medical records for a civil case?
Full Question:
I was in the midst of a divorce while on active duty in the Army. My now ex-wife quit her job applied for loans in my name using a fake power of attorney. She then went to the state police in May 07 (five months after I filed for a divorce) and said I was an alcoholic and I touched my daughters breast in Jan 07. My daughter has a learning disability and a problem with her memory. She frequently talks to herself. She can easily be coerced by her mother into saying anything especially if she promises to buy her a gift. I was of course not allowed to see my son or daughter because of these allegations. My ex-wife is very manipulative. My daughter told the story to several different agencies and so did my ex-wife. Each time the story changed. The story told to the grand jury was not the same story told to the lcsw, detective, nor the caseworker. Unfortunately, I had an attorney that somewhat admitted he did not know what he was doing until after he took all of my money. I ended up pleaded to a misdemeanor with no jail time no probation. I only had to pay a fine. The Asst DA knew they did not have a case but also knew I could not afford to continue with this case since I moved to Georgia . The Military allowed me to retire because they knew I was innocent. I just found out today that my daughter went to see a psychiatrist on several occasions and his findings were never talked about or brought before the grand jury. My attorney said he could do nothing about getting those records admitted as evidence to prove my innocence. I am finding out now that he was not telling the truth. I tried to have my ex-wife arrested for Identity Theft which would have been a class D felony. I have the police report and the evidence. The Asst District Attorney intercepted the arrest according to the Police SGT in Watertown NY and said it was considered a civil matter. New York Law does not state Identity Theft excludes spouses or relatives. The Assist District Attorney and Child Protective Services clearly made a mistake and tried to cover it up. In addition to that, my ex-wife finally left my house in which the judge awarded me (took 15 months)with our children after I filed an eviction notice. The case worker claims he made frequent visits. I have pictures of at least a year or more worth of garbage throughout the house. There were bags of human feces, liquor bottles, and beer cans everywhere. There is no way CPS visited my house. The odor was overwhelming. My sister called the state police and he said there wasn't anything he could to do because they moved. The case worker stated if they were smaller children, CPS would removed them from their mothers custody. My son is 16 and my daughter is 12 with a severe learning disability. It was clear they did not have water in the home for months. My children are stuck with her. I want to sue CPS for not visiting my home checking on my children's' welfare as well as defaming my name. They purposely did not present the psychiatrist report for a reason. Do I have a right to file through the courts to receive my daughters medical records in a civil case? Also, I would like to sue my ex for identity theft and forgery. There is so much more to this case. I cannot begin to tell it all. The bottom line...the Asst DA, CPS, and my Attorney all of course know one another and worked together to sweep this case under the rug. I feel justice was not served and I am a victim of not having the funds for proper legal representation. The law is suppose to protect everyone and not just the ones who have enough funds for the best attorney. I had to retire from the Army after over 21 years of service and no blemishes on my record because of this. I was on the promotion list and was going to 30 years before I would retire.
04/27/2009 |
Category: Criminal |
State: New York |
#16152
Answer:
A government employee has certain protections for their actions taken while doing the duties as an employee. Many jurisdictions offer immunity for such acts unless they amount to willful misconduct. However, case law exists finding that state law immunity doesn't apply in certain federal claims. For example, in the case at the link below, the court found that state law cannot provide immunity from suit for federal civil rights violations:
Identity theft as a criminal matter requires the unauthorized use of another's identity with the intent to defraud, in order to obtain a benefit. Defamation requires an untrue defamatory statement, which was known or should have been known to be false, which is communicated to a third party, causing harm to the person it regards. However, statements made as part of an official investigation or court proceeding are often privileged and not subject to charges of defamation.
The following are NY statutes:
§ 190.80 Penal.
Identity theft in the first degree. A person is guilty of identity theft in the first degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:
1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thousand dollars; or
2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars; or
3. commits or attempts to commit a class D felony or higher level crime or acts as an accessory in the commission of a class D or higher level felony; or
4. commits the crime of identity theft in the second degree as defined in section 190.79 of this article and has been previously convicted within the last five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in section 190.79, identity theft in the first degree as defined in this section, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter. Identity theft in the first degree is a class D felony.
§ 190.79 Penal.
Identity theft in the second degree. A person is guilty of identify theft in the second degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:
1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds five hundred dollars; or
2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds five hundred dollars; or
3. commits or attempts to commit a felony or acts as an accessory to the commission of a felony; or
4. commits the crime of identity theft in the third degree as defined in section 190.78 of this article and has been previously convicted within the last five years of identity theft in the third degree as defined in section 190.78, identity theft in the second degree as defined in this section, identity theft in the first degree as defined in section 190.80, unlawful possession of personal identification information in the third degree as defined in section 190.81, unlawful possession of personal identification information in the second degree as defined in section 190.82, unlawful possession of personal identification information in the first degree as defined in section 190.83, grand larceny in the fourth degree as defined in section 155.30, grand larceny in the third degree as defined in section 155.35, grand larceny in the second degree as defined in section 155.40 or grand larceny in the first degree as defined in section 155.42 of this chapter. Identity theft in the second degree is a class E felony.
§ 190.78 Penal.
Identity theft in the third degree. A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:
1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons; or
2. commits a class A misdemeanor or higher level crime. Identity theft in the third degree is a class A misdemeanor.
§ 170.05 Penal. Forgery in the third degree.
A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument. Forgery in the third degree is a class A misdemeanor.