April 28, 2014 • Personal Injury
On behalf of Rosenberg, Minc, Falkoff & Wolff, LLP
CPLR §3101(a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” With regard to medical treatment received by a plaintiff in a lawsuit, this has been interpreted to mean that the injured plaintiff waives the physician-patient privilege with respect to his relevant prior medical history concerning those physical conditions which he affirmatively places in controversy. See Koump v. Smith, 25 NY2d 287, 303 NYS2d 858, 250 NE2d 857 (1969).
However, a party does not waive the physician-patient privilege with respect to unrelated illnesses or injuries. In Romance v. Zavala, 98 AD3d 726, 950 NYS2d 390 (2nd Dept. 2012), the court stated that, the defendants were not entitled to any authorizations for the release of the injured plaintiff’s medical records requested in their notice to produce, which sought disclosure of medical records pertaining to illnesses and injuries unrelated to the subject accident. The court continued, while the principle of “full disclosure” does not give a party the right to uncontrolled and unfettered disclosure.
Similarly, an injured plaintiff’s alcohol and mental health records may be protected. If there is no claim regarding mental and psychological injuries, Mental Health Law 33.12 offers protections from disclosure, and even a claim for “loss of enjoyment of life,” relating solely to claimed physical injuries, does not warrant disclosure of substance abuse and mental health treatment information, without a showing of potential relevance. In other words, a defendant must show that the interests of justice significantly outweigh the plaintiff’s right to confidentiality by expert or other evidence establishing a particularized need for inquiry into matters not directly at issue in this action. See Alford v. City of New York, 2014 WL 1356674 (1 Dept. 2014).
Finally, there is a split between the First and Second Appellate Divisions about claims for “loss of enjoyment of life” that may be claimed in a Bill of Particulars. While the First Appellate Department will generally limit disclosure to those conditions affirmatively placed in controversy, the Second Appellate Department is much more liberal in its disclosure policies and will allow the defense to review records showing the nature and severity of the plaintiff’s prior medical conditions which may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life. See Montalto v. Heckler, 113 AD3d 741, 978 NYS.2d 891 (2nd Dept. 2014)
The New York City personal injury law firm of Rosenberg, Minc, Falkoff & Wolff has been representing injury victims for more than three decades. Our attorneys have a strong familiarity with the laws pertinent to personal injury cases in New York City and the surrounding areas.
For more information about how these laws apply to your case, schedule a free consultation by contacting us online or calling 1-866-516-5887.