| Farkas v Orange Regional Med. Ctr. |
| 2012 NY Slip Op 05610 [97 AD3d 720] |
| July 18, 2012 |
| Appellate Division, Second Department |
| Miriam Farkas et al., Respondents, v Orange RegionalMedical Center et al., Appellants. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forappellants Neal L. Sherman, Sterling K. Chudow, and Florida Ob-Gyn Associates, P.C. Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (ArnoldH. 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. Isaacand Michael H. Zhu], of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendant Orange RegionalMedical Center appeals, the defendants Neal L. Sherman, Sterling K. Chudow, and FloridaOb-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 tovacate so much of a preliminary conference order of the same court dated January 26, 2010, asdirected the plaintiffs to provide authorizations for the release of medical records outside theperiod of the subject pregnancy.
Ordered that the order is affirmed, with one bill of costs to the plaintiffs, payable by thedefendants appearing separately and filing separate briefs.
The plaintiff Libi Farkas (hereinafter the plaintiff mother) commenced this action in arepresentative capacity on behalf of the plaintiff Miriam Farkas (hereinafter the infant plaintiff)and derivatively on her own behalf, alleging that the defendants committed malpractice duringthe course of her pregnancy and the infant plaintiff's birth. In a preliminary conference order, theSupreme Court directed the plaintiffs to provide authorizations for, among other things, herprenatal, obstetrical, and gynecological records pertaining to the births of her six nonpartychildren. The plaintiffs moved to vacate so much of the preliminary conference order as directedthe plaintiff mother to provide authorizations for the release of medical records outside the periodof the [*2]pregnancy at issue in this case. The Supreme Courtgranted the plaintiffs' motion. The various defendants appeal. We affirm.
Generally, "[t]here shall be full disclosure of all matter material and necessary in theprosecution or defense of an action, regardless of the burden of proof, by . . . aparty" (CPLR 3101 [a] [1]). "The words, 'material and necessary', are . . . to beinterpreted liberally to require disclosure, upon request, of any facts bearing on the controversywhich will assist preparation for trial by sharpening the issues and reducing delay and prolixity"(Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
"Consequently, where the mental or physical condition of a party is in controversy, a noticemay be served pursuant to CPLR 3121 (a) requiring that the party submit to a medicalexamination or make available for inspection relevant hospital and medical records"(Dillenbeck v Hess, 73 NY2d 278, 286-287 [1989]). "The initial burden of proving that aparty's physical condition is 'in controversy' is on the party seeking the information and it is onlyafter such an evidentiary showing that discovery may proceed under the statute" (id. at287, quoting Koump v Smith, 25 NY2d 287, 300 [1969]).
However, even when the party seeking disclosure has demonstrated that the discovery soughtis material and necessary to a matter in controversy in the action, "discovery still may beprecluded if the requested information is privileged and thus exempted from disclosure"(Dillenbeck v Hess, 73 NY2d at 287; see CPLR 3121 [b]). "In determiningwhether certain information is protected under the physician-patient privilege, the burden is onthe party asserting the privilege to show the existence of circumstances justifying its recognition"(Williams v Roosevelt Hosp., 66 NY2d 391, 397 [1985] [internal quotation marksomitted]).
The physician-patient privilege provides that "[u]nless the patient waives the privilege, aperson authorized to practice medicine . . . shall not be allowed to disclose anyinformation which he acquired in attending a patient in a professional capacity, and which wasnecessary to enable him to act in that capacity" (CPLR 4504 [a]). "[T]he privilege has beenconstrued to protect information obtained by the physician whether such information wascommunicated by the patient to the physician or through the physician's observations of thepatient" (People v Elysee, 49 AD3d33, 38 [2007], affd 12 NY3d 100 [2009]). "The privilege applies at examinationsbefore trial . . . and it covers both oral testimony and documents, such as hospitalrecords . . . which presumably are drawn up in large part based on communicationsimparted by the patient to the treating physician" (Williams v Roosevelt Hosp., 66 NY2dat 396 [citations omitted]).
"Once the privilege is validly asserted, it must be recognized and the sought-afterinformation may not be disclosed unless it is demonstrated that the privilege has been waived"(Dillenbeck v Hess, 73 NY2d at 287). "A litigant will be deemed to have waived theprivilege when, in bringing or defending a personal injury action, that person has affirmativelyplaced his or her mental or physical condition in issue" (id.; see Arons v Jutkowitz, 9 NY3d393, 409 [2007]).
Here, the defendants submitted an expert affidavit which indicated that the plaintiff mother'sprevious pregnancies may have been a cause of the infant plaintiff's injuries. Accordingly, thedefendants 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 vHess, 73 NY2d at 286; Lamy vPierre, 31 AD3d 613, 614 [2006]; Ritter v Good Samaritan Hosp., 11 AD3d 667, 668 [2004];Yetman v St. Charles Hosp., 112 AD2d 297, 299 [1985]; cf. Sibley v Hayes 73Corp., 126 AD2d 629, 631 [1987]; Herbst v Bruhn, 106 AD2d 546, 550 [1984]).
In response to the defendants' showing, the plaintiffs demonstrated that the plaintiff mother'smedical records, which pertained to matters outside the period of the subject pregnancy, wereprivileged and not subject to disclosure. Although the plaintiff mother was not entitled to assertthe physician-patient privilege with respect to medical records pertaining to the subjectpregnancy, "during which time there could be no severance of the infant's prenatal history from[her] medical history" (Scharlack v Richmond Mem. Hosp., 102 AD2d 886, 888 [1984]),she did not waive the [*3]physician-patient privilege with respectto her own medical history by virtue of the allegations asserted in the complaint or the bills ofparticulars (see Lamy v Pierre, 31 AD3d at 614; Roman v Turner Colours, 255AD2d 571, 571 [1998]; Murphy v LoPresti, 232 AD2d 461, 462 [1996]; Bolos vStaten Is. Hosp., 217 AD2d 643, 644 [1995]; Teresi v Grecco, 206 AD2d 517, 518[1994]; Sibley v Hayes 73 Corp., 126 AD2d at 630; see also Dillenbeck v Hess,73 NY2d at 286; Koump v Smith, 25 NY2d at 300).
As the defendants correctly contend, since the plaintiff mother has availed herself of theprivilege, the plaintiffs will be precluded from introducing evidence at trial concerning matters asto which the physician-patient privilege has been asserted (see Roman v Turner Colours,255 AD2d at 571; Murphy v LoPresti, 232 AD2d at 462; Bolos v Staten Is.Hosp., 217 AD2d at 644; Teresi v Grecco, 206 AD2d at 518; Hughson v St.Francis Hosp. of Port Jervis, 93 AD2d 491, 501-502 [1983]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiffs' motion to vacate so much ofthe preliminary conference order as directed the plaintiffs to provide authorizations for therelease of medical records outside the period of the subject pregnancy. Mastro, A.P.J., Chambers,Sgroi and Miller, JJ., concur.