Hoenig v. Westphal

• Decision Date: 05 May 1981
• Parties: , 422 N.E.2d 491 Donald HOENIG, Appellant, v. Henry P. WESTPHAL, Respondent. Robert F. CALHOUN, Appellant, v. Joan A. PICKETT et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 831

439 N.Y.S.2d 831

52 N.Y.2d 605, 422 N.E.2d 491

Donald HOENIG, Appellant, v. Henry P. WESTPHAL, Respondent.

Robert F. CALHOUN, Appellant, v. Joan A. PICKETT et al., Respondents.

Court of Appeals of New York.

May 5, 1981.

Woolsey, Jr., Albany, for appellants.

Donald P. Ford, Jr., Albany, for respondents.

OPINION OF THE COURT

COOKE, Chief Judge.

Involved on these appeals are questions concerning the effect, operation and interaction of CPLR 3101 and 3121. Specifically, this court is asked to determine whether, in personal injury actions, attending physicians' reports are discoverable when a plaintiff has not requested an exchange of medical reports.

These actions were commenced by plaintiffs for personal injuries resulting from automobile accidents in which defendants were involved. Following service of the complaint and answer in Hoenig v. Westphal, plaintiff served a verified bill of particulars which specified the treating physicians and dates of treatment. By interrogatories, defendant sought to establish the existence of attending physicians' reports and their contents, including medical history, prescribed treatment, diagnosis and prognosis. Defendant also requested production of any reports identified. Plaintiff failed to comply and defendant moved to compel answers to the interrogatories. Plaintiff opposed the motion on the ground that the disclosure requested was contrary to CPLR 3121. Special Term denied the motion.

As in Hoenig, plaintiff in Calhoun v. Pickett served a verified bill of particulars specifying treating physicians and the dates of treatment. Defendant served a notice of examination before trial together with a notice to produce the reports of each attending physician showing examination, diagnosis and treatment. Plaintiff thereafter successfully moved for a protective order to strike the request for production of attending physicians' reports.

Both orders were appealed to the Appellate Division. That court reversed in each case, determining that CPLR 3101 permits discovery of attending physicians medical reports. The dissent disagreed, arguing that CPLR 3121 limits the more general provision of CPLR 3101 and prohibits discovery of doctors' records and reports absent an exchange initiated by the party examined under CPLR 3121 (subd. The Appellate Division, 77 A.D.2d 776, 431 N.Y.S.2d 212 thereafter certified to this court the questions of the correctness of its orders. We now affirm and answer the questions certified in the affirmative.

CPLR 3101 defines the scope of disclosure and provides that "shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101, subd. This provision has been liberally construed to require disclosure where the matter sought will "assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). Thus, restricted only by a test for materiality "of usefulness and reason" (id.), pretrial discovery is to be encouraged.

Specifically exempted from this mandate for full disclosure are matters protected by some privilege (CPLR 3101, subd. and material prepared for litigation (CPLR 3101, subd. Of course, plaintiffs do not and may not claim the physician-patient privilege, for that privilege was waived by commencement of these personal injury actions in which physical condition was affirmatively put in issue (Prink v. Rockefeller Center, 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517; Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857). Nor can plaintiffs now claim the exemption for material prepared for litigation, as the requests here on their face seek only reports of specified attending or treating doctors concerning medical history, diagnosis and treatment. Plaintiffs did not below and do not here support a claim that such reports are material prepared primarily, if not solely, for litigation (see Zimmerman v. Nassau Hosp., 76 A.D.2d 921, 429 N.Y.S.2d 262; Weisgold v. Kiamesha Concord, 51 Misc.2d 456, 273 N.Y.S.2d 279; Siegel, New York Practice, § 348, p. 430). Since there can be no dispute that the reports sought are "material and necessary" to the defense, CPLR 3101 on its face permits discovery.

Plaintiffs nonetheless resist disclosure based upon a purported restriction in CPLR 3121 on disclosure otherwise authorized. In plaintiff's view, CPLR 3121 is the exclusive mechanism for discovery of medical reports and a plaintiff may prevent discovery by the simple expedient of refusing to request medical reports in the hands of another party. Thus, the scope of discovery is to be determined by a plaintiff's strategic decision not to request an exchange of medical information. We decline to adopt such a narrow view of the discovery procedures and conclude that defendants were...