Farkas v. Orange Reg'l Med. Ctr.

WILLIAM F. MASTRO

Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao, Joseph L. DeMarzo, and John J. Barbera of counsel), for appellant Orange Regional Medical Center. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for appellants Neal L. Sherman, Sterling K. Chudow, and Florida Ob–Gyn Associates, P.C.
Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (Arnold H. Bank of counsel), for appellant Hee–Myoung Park.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler and Steven M. Kaye, Jr., of counsel), for appellant Yashvantrai P. Patel.
Torgan & Cooper, P.C. (Pollack Pollack Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondents.
WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, etc., the defendant Orange Regional Medical Center appeals, the defendants Neal L. Sherman, Sterling K. Chudow, and Florida Ob–Gyn Associates, P.C., separately appeal, the defendant Hee–Myoung Park separately appeals, and the defendant Yashvantrai P. Patel separately appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated August 23, 2010, which granted the plaintiffs' motion to vacate so much of a preliminary conference order of the same court dated January 26, 2010, as directed the plaintiffs to provide authorizations for the release of medical records outside the period of the subject pregnancy.

ORDERED that the order is affirmed, with one bill of costs to the plaintiffs, payable by the defendants appearing separately and filing separate briefs.

The plaintiff Libi Farkas (hereinafter the plaintiff mother) commenced this action in a representative capacity on behalf of the plaintiff Miriam Farkas (hereinafter the infant plaintiff) and derivatively on her own behalf, alleging that the defendants committed malpractice during the course of her pregnancy and the infant plaintiff's birth. In a preliminary conference order, the Supreme Court directed the plaintiffs to provide authorizations for, among other things, her prenatal, obstetrical, and gynecological records pertaining to the births of her six nonparty children. The plaintiffs moved to vacate so much of the preliminary conference order as directed the plaintiff mother to provide authorizations for the release of medical records outside the period of the pregnancy at issue in this case. The Supreme Court granted the plaintiffs' motion. The various defendants appeal. We affirm.

Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by ... a party” (CPLR 3101[a][1] ). “The words, ‘material and necessary’, are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” ( Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430).

“Consequently, where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR 3121(a) requiring that the party submit to a medical examination or make available for inspection relevant hospital and medical records” ( Dillenbeck v. Hess, 73 N.Y.2d 278, 286–287, 539 N.Y.S.2d 707, 536 N.E.2d 1126). “The initial burden of proving that a party's physical condition is ‘in controversy’ is on the party seeking the information and it is only after such an evidentiary showing that discovery may proceed under the statute” ( id. at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126, quoting Koump v. Smith, 25 N.Y.2d 287, 300, 303 N.Y.S.2d 858, 250 N.E.2d 857).

However, even when the party seeking disclosure has demonstrated that the discovery sought is material and necessary to a matter in controversy in the action, “discovery still may be precluded if the requested information is privileged and thus exempted from disclosure” ( Dillenbeck v. Hess, 73 N.Y.2d at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126;seeCPLR 3121[b] ). “In determining whether certain information is protected under the physician-patient privilege, the burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition” ( Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 397, 497 N.Y.S.2d 348, 488 N.E.2d 94 [internal quotation marks omitted] ).

The physician-patient privilege provides that “[u]nless the patient waives the privilege, a person authorized to practice medicine ... shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity” (CPLR 4504[a] ). “[T]he privilege has been construed to protect information obtained by the physician whether such information was communicated by the patient to the physician or through the physician's observations of the patient” ( People v. Elysee, 49 A.D.3d 33, 38, 847 N.Y.S.2d 654,affd.12 N.Y.3d 100, 876 N.Y.S.2d 677, 904 N.E.2d 813). “The privilege applies at examinations before trial ... and it covers both oral testimony and documents, such as hospital records ... which presumably are drawn up in large part based on communications imparted by the patient to the treating physician” ( Williams v. Roosevelt Hosp., 66 N.Y.2d at 396, 497 N.Y.S.2d 348, 488 N.E.2d 94 [citations omitted] ).

“Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived” ( Dillenbeck v. Hess, 73 N.Y.2d at 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126). “A litigant will be deemed to have waived the privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue” ( id.; see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831).

Here, the defendants submitted an expert affidavit which indicated that the plaintiff mother's previous pregnancies may have been a cause of the infant plaintiff's injuries. Accordingly, the defendants sustained their initial burden of demonstrating that the plaintiff mother's prenatal, obstetrical, and gynecological records pertaining to the births of her six nonparty children were “material and necessary” to the defense of this action (CPLR 3101[a]; see Dillenbeck v. Hess, 73 N.Y.2d at 286, 539 N.Y.S.2d 707, 536 N.E.2d 1126;Lamy v. Pierre, 31 A.D.3d 613, 614, 818 N.Y.S.2d 610;Ritter v. Good Samaritan Hosp., 11 A.D.3d 667, 668, 783 N.Y.S.2d 87;Yetman v. St. Charles Hosp., 112 A.D.2d 297, 299, 491 N.Y.S.2d 742;cf. Sibley v. Hayes 73 Corp., 126 A.D.2d 629, 631, 511 N.Y.S.2d 65;Herbst v. Bruhn, 106 A.D.2d 546, 550, 483 N.Y.S.2d 363).

In response to the defendants' showing, the plaintiffs demonstrated that the plaintiff mother's medical records, which pertained to matters outside the period of the subject pregnancy, were privileged and not subject to disclosure. Although the plaintiff mother was not entitled to assert the physician-patient privilege with respect to medical records pertaining to the subject pregnancy, “during which time there could be no severance of the infant's prenatal history from [her] medical history” ( Scharlack v. Richmond Mem. Hosp., 102 A.D.2d 886, 888, 477 N.Y.S.2d 184), she did not waive the physician-patient privilege with respect to her own medical history by virtue of the allegations asserted in the complaint or the bills of particulars ( see Lamy v. Pierre, 31 A.D.3d at 614, 818 N.Y.S.2d 610;Roman v. Turner Colours, 255 A.D.2d 571, 571, 681 N.Y.S.2d 69;Murphy v. LoPresti, 232 A.D.2d 461, 462, 648 N.Y.S.2d 169;Bolos v. Staten Is. Hosp., 217 A.D.2d 643, 644, 629 N.Y.S.2d 809;Teresi v. Grecco, 206 A.D.2d 517, 518, 615 N.Y.S.2d 893;Sibley v. Hayes 73 Corp., 126 A.D.2d at 630, 511 N.Y.S.2d 65;see also Dillenbeck v. Hess, 73 N.Y.2d at 286, 539 N.Y.S.2d 707, 536 N.E.2d 1126;Koump v. Smith, 25 N.Y.2d at 300, 303 N.Y.S.2d 858, 250 N.E.2d 857).

As the defendants correctly contend, since the plaintiff mother has availed herself of the privilege, the plaintiffs will be precluded from introducing evidence at trial concerning matters as to which the physician-patient privilege has been asserted ( see Roman v. Turner Colours, 255 A.D.2d at 571, 681 N.Y.S.2d 69;Murphy v. LoPresti, 232 A.D.2d at 462, 648 N.Y.S.2d 169;Bolos v. Staten Is. Hosp., 217 A.D.2d at 644, 629 N.Y.S.2d 809;Teresi v. Grecco, 206 A.D.2d at 518, 615 N.Y.S.2d 893;Hughson v. St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 501–502, 463 N.Y.S.2d 224).

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the plaintiffs' motion to vacate so much of the preliminary conference order as directed the plaintiffs to provide authorizations for the release of medical records outside the period of the subject pregnancy.