Gureghian v. Hackensack Hospital

• Decision Date: 19 February 1970
• Citation: 262 A.2d 440,109 N.J.Super. 143
• Parties: Catherine GUREGHIAN, etc. et al., Plaintiffs, v. HACKENSACK HOSPITAL et al., Defendants.
• Court: New Jersey Superior Court

Page 143

109 N.J.Super. 143

262 A.2d 440

Catherine GUREGHIAN, etc. et al., Plaintiffs, v. HACKENSACK HOSPITAL et al., Defendants.

Superior Court of New Jersey Law Division.

Feb. 19, 1970.

Freeman, Freeman & Cartier, Newark, for plaintiffs.

Hein, Smith, Mooney & Berezin, Hackensack, for defendant Winton Johnson.

Pindar, McElroy, Connell & Foley, Newark, for defendant Herbert Henry Eccleston.

Winne & Banta, Hackensack, for defendant Hackensack Hospital Ass'n.

BRESLIN, J.D.C. (temporarily assigned).

This matter arises out of an application by plaintiff for an order to compel defendant Hackensack Hospital to produce a report of the Perinatal Mortality Committee of the Department of Obstetrics and Gynecology. Plaintiff's request for a copy of the report, made pursuant to R. 4:17--1, was not complied with and this motion followed.

The instant cause of action sounds in negligence, based upon various breaches of duty and malpractices allegedly committed by the several defendants during the course of childbirth, causing injuries to the mother and injuries to and the death of the infant. The report in question was prepared more than one month after the infant's death by said committee and noted facts, cause of death and autopsy findings concerning the infant. The matters set forth in the report are not, however, confined to the subject of the infant. Apparently, the report is a monthly summary of infant deaths at or shortly after delivery and as such contains statistics of five other infant mortalities. The report is not part of the patient's record and was not made during the course of treatment by a treating physician.

(The movant does not state whether his papers are brought pursuant to R. 4:18--1 or R. 4:17--5. However, since a determination of this dispute is governed by considerations applicable to both rules, see comment to R. 4:17--5, I will treat the application as having been introduced in accordance with the provisions of R. 4:18--1).

R. 4:18--1 states, in part:

'On motion by any party, for good cause shown and upon notice to all other parties * * * the court may order any party to produce and permit the moving party * * * to inspect and copy or photograph any designated books, papers * * *, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by R. 4:10--2 and which are in his possession * * *.

R. 4:10--2 states:

* * * the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any * * * document * * *.

The broadest possible latitude should be accorded pretrial discovery. Myers v. St. Francis Hospital, 91 N.J.Super. 377, 220 A.2d 693, 15 A.L.R.3d 1432 (App.Div.1966). This liberal spirit of discovery must be borne in mind whenever the court determines whether good cause for the discovery of documents is shown.

In Lakewood Trust Co. of Lakewood v. Fidelity & Deposit Co., 81 N.J.Super. 329, 195 A.2d 503 (Law Div.1963), the court held:

What will constitute good cause is a flexible matter and must be determined * * * in each case on its own merits. * * *

Generally, inspection orders should issue upon a showing that the desired inspection of the document or other property is relevant to the subject matter of the pending action and will aid the moving party in the preparation of his case, * * *. (at 339, 195 A.2d at 508.)

The test of relevancy has been stated as being whether the subject matter sought to be discovered is useful. Myers v. St. Francis Hospital, Supra.

The committee report contains a capsulized finding as to the infant's condition at delivery and the cause of death as revealed by autopsy. Since a basis of the cause of action is the alleged negligence in the delivery of the infant, which negligence caused the infant's death, the committee report may well be relevant and useful in the preparation of plaintiff's case.

Defendant resists production on the ground that the report is a confidential internal communication which does not relate to the care and treatment of the patient. However, it does not assert a privilege pursuant to Evidence Rule 26A(2), N.J.S.A. 2A:84A--22.2. In support of its position defendant cites Judd v. Park Avenue Hospital, 37 Misc.2d 614, 235 N.Y.S.2d 843, (Sup.Ct.1962), aff'd 18 A.D.2d 766, 235 N.Y.S.2d 1023 (App.Div.1962). In that case the movant sought discovery of records of medical staff discussions and committee meetings relative to surgery performed on the plaintiff. In denying the motion, the court held:

* * * This obviously calls for the disclosure of hearsay and statements not shown to be binding upon the defendants or any of them. Such records, if there be any, are to be distinguished from entries in the patient's record made contemporaneously with the treatment and received in evidence pursuant to § 374--a Civil Practice Act. (235 N.Y.S.2d, at 845)

New York Civil Practice Act, § 374--a, now ...