Dilorenzo v. Toledano

• Decision Date: 11 March 2019
• Docket Number: INDEX NO. 605949/2017
• Parties: JOSEPH DILORENZO, Plaintiff, v. BARUCH TOLEDANO, M.D., BARUCH TOLEDANO, M.D., P.C., ORTHOPAEDIC ASSOCIATES OF GREAT NECK, LLP, NORTHWELL HEALTH PHYSICIAN PARTNERS, NORTHWELL HEALTHCARE, INC. and NORTHWELL HEALTH, INC., Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 33941(U)

JOSEPH DILORENZO, Plaintiff, v. BARUCH TOLEDANO, M.D., BARUCH TOLEDANO, M.D., P.C.,ORTHOPAEDIC ASSOCIATES OF GREAT NECK, LLP,NORTHWELL HEALTH PHYSICIAN PARTNERS,NORTHWELL HEALTHCARE, INC. and NORTHWELL HEALTH, INC., Defendants.

INDEX NO. 605949/2017

SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY TRIAL/IAS PART 32

RECEIVED: March 12, 2019

March 11, 2019

NYSCEF DOC. NO. 103

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice

Motion Seq. Nos.: 03, 04

Motion Dates: 11/15/18 01/04/19

The following papers have been read on these motions:

   Papers Numbered  Notice of Motion (Seq. No. 03), Affirmations and Exhibits   Notice of Cross-Motion (Seq. No. 04), Affirmation and Exhibits   Affirmation in Reply to Motion (Seq. No. 03) and in Opposition to   Cross-Motion (Seq. No. 04)   Affirmation in Reply to Cross-Motion (Seq. No. 04) and Exhibit  

Upon the foregoing papers, it is ordered that the motions are decided as follows:

Defendant Baruch Toledano, M.D. ("Dr. Toledano") moves (Seq. No. 03), pursuant to CPLR § 3124, for an order compelling plaintiff to produce an authorization to obtain the records from plaintiff's psychiatrist, Dr. Raymond Behr; or, in the alternative, moves, pursuant to CPLR § 3126, for an order precluding plaintiff from offering supportive evidence at trial on the issue of loss of enjoyment of life and his mental health.

Plaintiff opposes the motion and cross-moves (Seq. No. 04), pursuant to CPLR § 3103(a), for a protective order preventing defendants from obtaining plaintiff's mental health records, including his psychiatric records. Defendant Dr. Toledano opposes the cross-motion.

In support of the motion (Seq. No. 03), counsel for defendant Dr. Toledano submits, in pertinent part, "[t]his is a medical malpractice action involving allegations that orthopedic surgeon, Dr. Baruch Toledano, failed to properly treat the plaintiff's calcaneus fracture from December 2015 to May 2016, resulting in a multitude of alleged injuries including: calcaneus malunion; subtalar arthritis; difficulty walking; right ankle pain; impaired gait; inability to tolerate activities of daily living; inability to tolerate light recreation; loss of independence; and loss of enjoyment of life. The defendants are entitled to the records of psychiatrist, Dr. Raymond Behr, who plaintiff has treated with for the past five years for his longstanding history of anxiety and depression, as plaintiff has placed his entire medical and psychiatric history in controversy by virtue of commencing the instant lawsuit. This is especially true in this case where the plaintiff testified that he discussed with Dr. Behr the affect the calcaneus fracture had on his life. Additionally, the scope and severity of plaintiff's prior psychiatric condition impacts the damages, if any, recoverable for a claim of loss of enjoyment of life."

Counsel for defendant Dr. Toledano asserts, in pertinent part, that, "[a]t his deposition, the plaintiff testified that he was diagnosed with anxiety (which goes 'hand-in-hand' with his depression) when he was 10 or 11 years of age, for which he currently takes Clomipramine and treats with psychiatrist, Dr. Raymond Behr.... When specifically asked if he discussed the alleged injuries in this case with Dr. Behr plaintiff testified: Q. Not in terms of the actual management of your heel fracture, but in terms of your ongoing issues that you have in regard to say loss ofenjoyment of life or further anxiety or further depression? A. Yes. Q. Have you spoken with Dr. Behr in regard to those issues? A. Yes, actually. You know, definitely the whole, you know, depression, and my weight is a big issue of him and me, but since, I mean, I was 160 pounds, you know. I exercised. I was fine. Once this happened, I just, you know, I wasn't - I'm really not physically able to exercise or do much moving.... Following the plaintiff's deposition, on April 2, 2018, the defendants served a demand for authorizations including one for Dr. Behr. The defendants subsequently sent several follow-up letters regarding this authorization and plaintiff responded by objection to its production." See Defendant Dr. Toledano's Affirmation in Support Exhibits F and G.

Counsel for defendant Dr. Toledano argues, in pertinent part, that, "the Court in Amoroso v. City of New York, [citation omitted], held that 'the defense is entitled to review records showing the nature and severity for the plaintiff's prior medical conditions [which] may have an impact upon the amount of damages, if any, are recoverable for a claim of loss of enjoyment of life.'... In addition, medical records that address the plaintiff's prior existing mental health or psychiatric conditions are likewise subject to disclosure in claims alleging loss of enjoyment of life.... In the instant matter, by virtue of commencing the within action for medical malpractice and claiming loss of enjoyment of life, plaintiff has placed his entire medical condition, which includes his mental health, in issue. Pursuant to the provisions of the CPLR, plaintiff must comply with the liberal rules of discovery by providing an authorization for psychiatrist Dr. Behr, who has treated him for his long-standing anxiety and depression, and most importantly, his mental health as it relates to the effect of the care and treatment at issue. Whether these records are admissible at trial is not dispositive as to whether the records are now discoverable.Accordingly, the defendants are entitled to obtain copies of these psychiatry records as the plaintiff's anxiety and depression, both before and after the treatment at issue, directly impact the damages in this case and what may or may not be recoverable for a claim for loss of enjoyment of life."

In opposition to the motion (Seq. No. 03) and in support of the cross-motion (Seq. No. 04), counsel for plaintiff submits, in pertinent part, that, "[p]laintiff did not put his mental health in issue, and defendants did not establish that the interests of justice significantly outweigh plaintiff's need for confidentiality. As such, defendants are not entitled to his mental health records. Joseph DiLorenzo ('Mr. Di Lorenzo') was 28 years old when he fell at work and injured his calcaneus (heel) and ankle. He saw defendant, Baruch Toledano, M.D., who incorrectly and negligently determined that Mr. Di Lorenzo did not require surgical intervention, and as a result, Mr. DiLorenzo's calcaneus did not heal properly, and Mr. Di Lorenzo cannot walk distances, run or put excessive weight on his foot, which prevents him from participating in and enjoying many of the normal pursuits of life for a man his age. This medical malpractice lawsuit ensued."

Counsel for plaintiff further asserts, in pertinent part, that, "[o]n March 26, 2018, Mr. DiLorenzo testified as follows regarding his treatment with psychiatrist, Dr. Raymond Behr: Q. How long have you been treating with Dr. Behr? A. Couple of years. I'm not really sure. Five years maybe. Q. What types of conditions do you treat with Dr. Behr for? A, Just basically the anxiety and depression. Q. Have you treated with Dr. Behr in regard to the claims in this lawsuit? A. No. Actually - no. No, not really. I'm sorry. No. ... Q. At any point in time have you ever discussed with Dr. Behr about any of the injuries that you sustained in regard to this lawsuit? A. Not much. No. Q. Well, 'not much' and 'no' are two different answers. A. I'm sure I told him about it. I couldn't go see him for six months so I'm sure I told him about it, but no, hehasn't done anything, you know, he doesn't treat it or anything like that. Q. When you say 'he doesn't treat it'? A. He does nothing for my heel at all. Q. Not in terms of the actual management of your heel fracture, but in terms of any ongoing issues that you have in regard to say loss of enjoyment of life or further anxiety or further depression? A. Yes. Q. Have you spoken with Dr. Behr in regard to those issues? A. Yes, actually. You know, definitely the whole, you know, depression, and my weight is a big issue for him and me, but since -- I mean, I was 160 pounds, you know. I exercised. I was fine. Once this happened, I just, you know, I wasn't - I'm really not physically able to exercise or do much moving.... Mr. DiLorenzo did not make any claims for depression or anxiety in this case; he did not treat with Dr. Behr for any injuries he is claiming herein." See Plaintiff's Affirmation in Support of Cross-Motion and in Opposition to Motion Exhibit A.

Counsel for plaintiff argues that, "[t]he physician-patient relationship is a confidential, privileged relationship to facilitate 'uninhibited and candid communication between the patients and medical professionals, the accurate records of confidential information and the protection of the patients' reasonable privacy expectations.' [citation omitted]. That privilege is rooted in both the statutory law and public policy of New York State.... New York has a strong public policy against disturbing the physician-patient privilege afforded by CPLR 4504(a). [citation omitted]. The Court of Appeals held that the waiver of the physician-patient privilege only applies to those conditions affirmatively placed in controversy by the plaintiff. [citation omitted].... A plaintiff is not required to provide an authorization for treatment where he does not claim damages for that treatment. [citation omitted]. A motion for an authorization for the release of psychiatric records will be denied and a protective order will be granted where the defendants fail to establish that the records are material and necessary to the defense of the action. [citation omitted]....Moreover, despite defendants' contention, merely commencing an action does not automatically waive the physician-patient privilege, without evidence that the plaintiff affirmatively placed his or her psychiatric condition in issue. [citation omitted].... The Second...