| Rothstein v Huh |
| 2009 NY Slip Op 01972 [60 AD3d 839] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Judith Rothstein, Respondent, v Chihee Huh et al.,Appellants, et al., Defendants. |
—[*1] Robert F. Danzi, Westbury, N.Y., for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants Chihee Huh, Hans Christian Fromme, David Neckritz, and Maimonides MedicalCenter appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated April 8,2008, which granted the plaintiff's motion pursuant to CPLR 3103 for a protective orderregarding mental health and alcohol abuse treatment records.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,and the plaintiff's motion for a protective order is denied.
It is well settled that a plaintiff who commences a medical malpractice action waives thephysician-patient privilege with respect to those physical or mental conditions which he or sheaffirmatively places in issue in the lawsuit (see Dillenbeck v Hess, 73 NY2d 278, 287[1989]; Koump v Smith, 25 NY2d 287, 294 [1969]). Since the plaintiff affirmativelyplaced the mental condition of her ward in controversy, the appellants were entitled to fulldisclosure of records regarding her ward's mental health and alcohol abuse treatment, if any,prior to the date of the alleged negligence (see Avila v 106 Corona Realty Corp., 300AD2d 266, 267 [2002]; Ellerin v Bentley's, 266 AD2d 259, 260 [1999]; Daniele vLong Is. Jewish-Hillside Med. Ctr., 74 AD2d 814 [1980]; cf. Wojtusiak v Elardo, 43 AD3d436 [2007]; Calendar v Mnasin,23 AD3d 509 [2005]). In addition, the nature and severity of the previous mentalcondition of her ward is material and necessary to the issue of damages recoverable for a claimedloss of enjoyment of life due to his current brain injury (see Diamond v Ross Orthopedic Group, P.C., 41 AD3d 768, 769[2007]; Vanalst v City of New York, 276 AD2d 789 [2000]). Spolzino, J.P., Ritter,Covello and Belen, JJ., concur.