Bolos v. Staten Island Hosp.

• Decision Date: 24 July 1995
• Citation: 217 A.D.2d 643,629 N.Y.S.2d 809
• Parties: Lauren BOLOS, etc., et al., Respondents, v. STATEN ISLAND HOSPITAL, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 809

629 N.Y.S.2d 809

217 A.D.2d 643

Lauren BOLOS, etc., et al., Respondents, v. STATEN ISLAND HOSPITAL, etc., et al., Appellants.

Supreme Court, Appellate Division Second Department.

July 24, 1995.

Belair & Evans, New York City (Alexander D. Rosati, of counsel), for appellants.

Davis & Smith, New York City (Christopher J. Smith, of counsel), for respondents.

Before BRACKEN, J.P., and BALLETTA, ROSENBLATT and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, the defendants appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated February 17, 1994, which granted the plaintiffs' motion for reargument of the defendants' motion for a further deposition of the plaintiff Randi Bolos, and, upon reargument, limited the scope of the deposition.

ORDERED that on the court's own motion, the appellants' notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701[c]; Simon v. Massapequa Gen. Hosp., 167 A.D.2d 533, 562 N.Y.S.2d 948); and it is further,

ORDERED that the order is modified by deleting therefrom the following language: "her condition for the period of her pregnancy only", and substituting therefor the following: "relevant medical incidents or facts concerning herself and her children"; as so modified, the order is affirmed, without costs or disbursements.

It is well settled that motions for reargument are addressed to the sound discretion of the trial court and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (see, Loland v. City of New York, 212 A.D.2d 674, 622 N.Y.S.2d 762; Three Bros. Estates v. Guli, 205 A.D.2d 525, 613 N.Y.S.2d 56; Ebasco Constructors v. A.M.S. Constr. Co., 195 A.D.2d 439, 599 N.Y.S.2d 866). Contrary to the defendants' contention, the Supreme Court did not improvidently exercise its discretion when it granted the plaintiffs' motion for reargument.

We find, however, that the Supreme Court improperly limited the scope of the questioning of the mother about her medical history to the period of time when the infant plaintiff was in utero. The Court of Appeals has expressly stated that:

"A witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to testify as to relevant medical incidents or facts concerning herself or her children" (Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 393, 497 N.Y.S.2d 348, 488 N.E.2d 94).

Thus, a witness may not refuse to answer questions regarding matters of fact such as, for example:

"whether her children had any physical or congenital problems, whether she was in the care of a physician or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate to events that required medical care or advice from a physician" (Williams v. Roosevelt Hosp., supra, at 397, 497 N.Y.S.2d 348, 488 N.E.2d 94).

While the mother was allowed to answer some factual questions, she was prevented by counsel from answering many other questions about "the mere facts and incidents of a person's medical history" (Williams v. Roosevelt Hosp., supra, at 396, 497 N.Y.S.2d 348, 488 N.E.2d 94). Thus, the defendants...