Hughson v. St. Francis Hosp. of Port Jervis

• Decision Date: 16 May 1983
• Citation: 463 N.Y.S.2d 224,93 A.D.2d 491
• Parties: Durinda HUGHSON, an infant, etc., Respondent, v. ST. FRANCIS HOSPITAL OF PORT JERVIS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 224

463 N.Y.S.2d 224

93 A.D.2d 491

Durinda HUGHSON, an infant, etc., Respondent, v. ST. FRANCIS HOSPITAL OF PORT JERVIS et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

May 16, 1983.

Morris, Duffy, Ivone & Jensen, New York City (Edwin H. Knauer, New York City, of counsel), for appellant St. Francis Hospital of Port Jervis.

Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Myra I. Packman, Mount Krisco, of counsel), for appellants Stanley Brunn and Seymour Weiner.

Pegalis & Wachsman, P.C., Great Neck (Roger K. Solymosy, Great Neck, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, THOMPSON and NIEHOFF, JJ.

NIEHOFF, Justice.

This is a medical malpractice action brought to recover for personal injuries allegedly sustained by the infant plaintiff, Durinda Hughson, as a result of the claimed medical malpractice of the defendants in rendering negligent prenatal and delivery care to Blanche A. Hughson, the infant plaintiff's mother. The suit was instituted on behalf of the infant plaintiff by her father, William Hughson. The infant's mother is not a party to the action.

The appeals presently before us are from an order of Special Term which denied a motion for "an order compelling plaintiff William Hughson and non-party witness Blanche A. Hughson to submit to further examinations before trial and to provide the medical authorizations demanded".

Although the motion was addressed to obtaining medical authorizations from the mother and further examinations before trial of the father as well as the mother, defendants' briefs on appeal limit the appeals to the matters of a further examination before trial of the mother and the medical authorizations.

In brief, defendants seek to depose the infant plaintiff's mother regarding her medical history both prior to and subsequent to the birth of the infant plaintiff and to obtain medical authorizations in connection therewith. The infant plaintiff resists the relief sought upon the ground that "confidential information concerning the medical history of a non-party to the action is privileged and immuned from disclosure".

Special Term denied the motion stating in part:

"The medical information sought may be relevant but it is also privileged (Burgos v. Flower & Fifth Ave. Hosp., 108 Misc 2d 225 )."

For reasons stated below we modify the order of Special Term (1) by reversing so much thereof as denied defendants' request for a further examination before trial of the infant plaintiff's mother as to her prior medical history and for authorizations for her prior medical history and (2) by affirming so much of the order as denied defendants' request for medical records and testimony concerning a later born child.

Essentially, the complaint alleges that because of negligent acts and/or omissions occurring before delivery, during delivery and post delivery, the infant plaintiff suffered severe central nervous system injury manifesting itself in retardation, cerebral palsy, brain injury, quadraperesis and neurologic deficit.

The description of the acts constituting the alleged malpractice set forth in the plaintiff's bills of particulars covers almost seven full typewritten pages and sets forth numerous acts of malpractice directed at the mother, Blanche A. Hughson. Insofar as pertinent to the question before us the bills recite that the defendants were:

"careless and negligent in failing to diagnose, evaluate, appreciate and correlate the significance of the maternal past history; * * * and carelessly and negligently failing to have, take and obtain a full, proper and informative history and record such carefully, carefully neatly and accurately contemporaneously with receipt of the information; carelessly and negligently failed to appropriate take and record the patient's chief complaints, history, family history, social history, medical history, history of allergies and a careful, complete review of systems * * * carelessly and negligently failed to read and review past and then current medical and hospital records so as to be cognizant and aware of the patient's condition and progress".

Thus, it is abundantly clear from the infant plaintiff's own bill of particulars that she has put in issue the alleged failure of the defendants to diagnose, evaluate, appreciate and correlate the significance of the mother's, past physical condition, medical history and family history. Therefore, Special Term correctly held that the medical information relating to the medical history of the mother which was sought by defendants was relevant.

However, in our judgment Special Term erred when it held that all of the medical information sought was privileged. Some of it was not privileged, and the mother may properly be called upon to disclose such nonprivileged information. With respect to so much of such information as is cloaked with the privilege, we hold that the mother should either disclose such privileged, relevant information at this juncture or be precluded from revealing it at the trial.

We turn now to a review of the manner in which this controversy arose and an analysis of the parties' respective contentions.

Pursuant to court order, examinations before trial of William Hughson, the father, and Blanche A. Hughson, the mother were held on July 27, 1981. During the course of the deposition of Blanche A. Hughson, plaintiff's counsel appeared as her attorney, interposed objections to certain questions and directed her not to answer a number of questions concerning her medical history and employment. The examination concerned itself with the manner of birth of the infant plaintiff; the mother's personal medical history for a period preceding the birth of the infant plaintiff's brothers and sisters; the mother's employment and earnings records; and the father's employment history and earnings and expense records. The objections as to certain of the medically related questions were premised upon the grounds that the medical history of Blanche A. Hughson, testifying as a nonparty witness, was privileged. During the examination before trial, defense counsel requested medical and hospital authorizations in order to obtain the delivery records and the pregnancy charts for each of her four pregnancies; and the birth charts of each of the four Hughson children, two of whom were adopted by William Hughson after his marriage to Blanche A. Hughson. The requests were refused.

Thereafter, defendants Brunn and Weiner brought on a motion to compel William Hughson and Blanche A. Hughson to submit to further examinations before trial as to the above issues and to provide the medical authorizations to them for all pregnancies, both prior to and after the birth of the infant plaintiff Durinda Hughson. In addition, defendants Brunn and Weiner sought discovery in the form of information about the educational and economic status of the infant plaintiff's siblings and other family members. Defendant St. Francis Hospital joined in that application. The plaintiff opposed the application and cross-moved for an order compelling defendants Brunn and Weiner to appear for their examinations before trial. Special Term denied the motion and cross motion. In denying defendants' motion Special Term declared that while the medical information sought might be relevant, it was also privileged. These appeals ensued. On appeal, the defendants make no claim with respect to the educational and economic status of the Hughson family.

Initially, we note that no appeal as of right lies from an order on an application to review objections raised at an examination before trial (Aronofsky v. Marine Park Chiropractic Center, 81 A.D.2d 570, 437 N.Y.S.2d 422; Siegal v. Arnao, 61 A.D.2d 812, 402 N.Y.S.2d 44; Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450; Lacerenza v. Rich, 39 A.D.2d 716, 332 N.Y.S.2d 230). However that may be, in view of the novelty and significance of the issues raised in this case involving important principles of privilege, we elect to treat the defendants-appellants' briefs as applications for leave to appeal pursuant to CPLR 5701 (subd. ), and hereby grant permission pursuant to that statute.

Turning to the merits of these appeals, we see that, in essence, defendants claim that as a result of this lawsuit, the physical condition, medical history and family history of Blanche A. Hughson has been affirmatively put in issue by plaintiff. Defendants maintain that although the action is brought by the father on behalf of the infant plaintiff, it is the care given to the mother as well as her genetic and physical history that is really in question. Consequently, defendants argue that Blanche A. Hughson should be compelled to testify at her deposition as to her entire medical history and that all medical records and records of all hospitalizations for any reason, including pregnancies prior to or subsequent to that of the infant plaintiff Durinda Hughson, are material and necessary for the defense of this action. Defendants assert that such evidence is discoverable in this case because any physician-patient privilege was waived when the action was begun on Durinda Hughson's behalf. Finally, defendants urge that they should not be foreclosed in their examination into areas such as the family's genetic history or any complications surrounding other pregnancies just because the mother is not named as a plaintiff since such a foreclosure would result in an undue advantage to plaintiff. It was to that end that defendants sought a further examination before trial of the plaintiff's parents and the medical authorizations pertaining, inter alia, to the births of the other Hughson children.

Plaintiff counters with the argument that the medical history of a nonparty to the action is privileged and immune from disclosure. Thus, plaintiff contends that the statutory physician-patient privilege prevents further discovery in the avenues sought by defendants, to...