Scalone v. Phelps Memorial Hosp. Center

• Decision Date: 07 December 1992
• Citation: 591 N.Y.S.2d 419,184 A.D.2d 65
• Parties: Karen SCALONE, etc., Appellant, v. PHELPS MEMORIAL HOSPITAL CENTER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 419

591 N.Y.S.2d 419

184 A.D.2d 65

Karen SCALONE, etc., Appellant, v. PHELPS MEMORIAL HOSPITAL CENTER, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 7, 1992.

Pegalis & Wachsman, P.C., Great Neck (Rhonda L. Meyer, of counsel), for appellant.

O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Mary Pat Burke, of counsel), for respondents Phelps Memorial Hosp. Center, Anthony A. Maglione, Martin G. Wertkin, Young Woo Choi, Saran S. Rosner and Saran S. Rosner, M.D., P.C.

Pilkington & Leggett, White Plains (Dennis A. Vernoia, of counsel), for respondents George N. Pappas and George N. Pappas, M.D., P.C.

Before MANGANO, P.J., and BRACKEN, BALLETTA, and O'BRIEN, JJ.

BALLETTA, Justice.

The major issue raised on this appeal is whether the plaintiff waived her physician-patient privilege with respect to her own medical history simply because she commenced this wrongful death action as the personal representative and distributee of the estate. We hold that she did not.

This action was commenced by the plaintiff, Karen Scalone, in her capacity as Administratrix of the estate of the decedent, Glen Scalone, her husband, and individually, to recover damages for wrongful death based on alleged medical malpractice and lack of informed consent. The defendants Phelps Memorial Hospital Center, Anthony A. Maglione, Martin G. Wertkin, Young Woo Choi, Saran S. Rosner, and Saran S. Rosner, M.D., P.C., moved and the defendants George N. Pappas, and George N. Pappas, M.D., P.C., separately moved, inter alia, for a further deposition of the plaintiff due to her refusal to answer questions at her first deposition on the subjects of her medical history and of the death benefits she received as a result of the death of her husband. The plaintiff cross-moved for a protective order with respect to the information sought, for further particulars relating to the affirmative defenses of informed consent and for a stay of nonparty depositions. The court granted the motion and separate motion for further disclosure and denied the plaintiff's cross motion. The plaintiff then brought this appeal.

I

As a preliminary matter, we must first address the contention that the order of the Supreme Court is not appealable as of right and that, since permission to appeal has not been granted, the plaintiff's appeal must be dismissed.

The plaintiff points out that only part of her appeal pertains to the granting of a further deposition, and, with respect to that aspect of the appeal, she argues that she need not seek leave to appeal as it pertains to a substantial right and involves novel issues of law. Specifically, the plaintiff asserts that the compelled disclosure of privileged information, i.e., her medical records, affects a substantial right and that the issue of the compelled disclosure of life insurance and death benefits is a novel one which should be decided on the merits.

It is well settled that no appeal as of right lies from an order directing a party to answer questions propounded at an examination before trial (see, Daly v. Genovese, 96 A.D.2d 1027, 466 N.Y.S.2d 428; Hughson v. St. Francis Hosp., 93 A.D.2d 491, 495, 463 N.Y.S.2d 224; Matter of Beeman, 108 A.D.2d 1010, 1011, 485 N.Y.S.2d 396). Similarly, no appeal lies as of right from an order granting a further deposition of a witness already deposed (see, Ielovich v. Taylor Machine Works, 128 A.D.2d 676, 513 N.Y.S.2d 175; Sainz v. New York City Health & Hosps. Corp., 106 A.D.2d 500, 483 N.Y.S.2d 37). However, where an appeal raises issues of "novelty and significance", this court may elect to treat an appellant's notice of appeal as an application for leave to appeal pursuant to CPLR 5701(c) and thereupon grant leave to appeal (see, Hughson v. St. Francis Hosp., supra; Daly v. Genovese, supra ). We find that the legal and factual issues raised in regard to the Supreme Court's order directing further depositions are sufficiently novel and significant to justify this court exercising its power under CPLR 5701(c) (see, Hughson v. St. Francis Hosp., supra ). Accordingly, we shall treat the plaintiff's notice of appeal as an application for leave to appeal and grant leave to appeal.

II

The plaintiff contends that her medical records and any confidential communications that she may have had with her treating physicians constitute privileged information which is not discoverable under the disclosure provisions of CPLR 3101 and 3121. She asserts that a widow, acting as a distributee and legal representative, does not put her own physical condition in issue merely by commencing a wrongful death action.

The defendants contend that by commencing this action, the plaintiff has placed her own health, age, and circumstances in controversy. They argue that the plaintiff's medical history and records are relevant to the extent that they can vary the application of the life expectancy tables on the durational measurement of the plaintiff's claim. Accordingly, they maintain that the court properly ordered discovery of the subject information and records.

Pursuant to CPLR 3101(a), "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof". The Court of Appeals has stated that the statutory language is:

"to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd [a] should be construed, as the leading text on practice puts it, to permit discovery of testimony 'which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable' " (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [288 N.Y.S.2d 449, 235 N.E.2d 430], quoting 3 Weinstein-Korn-Miller, NY Civ Prac p 3101.07, at 31-13).

Although the discovery provisions of the CPLR are to be liberally construed (see, Cynthia B. v. New Rochelle Hosp. Med. Center, 60 N.Y.2d 452, 461, 470 N.Y.S.2d 122, 458 N.E.2d 363) and the trial court possesses wide discretion in deciding whether the information sought is "material and necessary" (see, Allen v. Crowell-Collier Publ. Co., supra, 21 N.Y.2d at 406, 288 N.Y.S.2d 449, 235 N.E.2d 430), "this is not to say that carte blanche demands are to be honored, and those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied" (Capoccia, P.C. v. Spiro, 88 A.D.2d 1100, 1101, 453 N.Y.S.2d 70).

Thus, under CPLR 3101(b), "[u]pon objection of a party privileged matter shall not be obtainable", and, under CPLR 3103(a), "the court may at any time on its own initiative, or on motion of any party or witness, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts".

The regulation of the terms and provisions of disclosure so as to prevent abuse through the issuance of a protective order under CPLR 3103 is generally left to the sound discretion of the trial court (see, Matter of U.S. Pioneer Elec. Corp. [v. Nikko Elec. Corp. of America], 47 N.Y.2d 914, 916, 419 N.Y.S.2d 484, 393 N.E.2d 478; see also, Nitz v. Prudential-Bache Securities, Inc., 102 A.D.2d 914, 915, 477 N.Y.S.2d 479; Oppenheimer v. Shubitowski, 92 A.D.2d 1021, 1022, 461 N.Y.S.2d 444; Matter of Westchester Rockland Newspapers v. Marbach, 66 A.D.2d 335, 337, 413 N.Y.S.2d 411). However, under the facts and circumstances of this case, it was an improvident exercise of discretion to grant the motions for further disclosure.

Pursuant to CPLR 4504(a), a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity" unless the patient waives the privilege of confidentiality. A litigant who has affirmatively placed his or her physical or mental condition in issue will be deemed to have waived the physician-patient privilege with respect to his or her own medical records (see, Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126; Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857; Gandy v. Larkins, 165 A.D.2d 862, 560 N.Y.S.2d 326; Shapiro v. Levine, 104 A.D.2d 800, 801, 479 N.Y.S.2d 1006).

Within the context of a wrongful death action, it has been held that the personal representative waives any privilege relating to the decedent's "actual condition of health" immediately before his death (see, Eder v. Cashin, 281 A.D. 456, 460, 120 N.Y.S.2d 165). Thus, the defendant in a wrongful death action may compel disclosure of the decedent's medical records or doctors' reports (see, Prink v. Rockefeller Center, 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517; Brewer v. Jamaica Hosp., 73 A.D.2d 851, 423 N.Y.S.2d 188). However, the parties cite no authority for holding that merely by commencing a wrongful death action a personal representative or distributee waives his or her own doctor-patient privilege under CPLR 4504(a).

The defendants rely upon the general rule that "[i]n a wrongful death action, the plaintiff tenders the issue of pecuniary loss sustained by the next of kin" ( Freeman v. Corbin, 60 A.D.2d 824, 825, 401 N.Y.S.2d 224; Eder v. Cashin, supra ). In this regard, they point to several cases which have held that the life expectancy as well as the health and age of a distributee are matters which a jury may consider in determining the quantum of damages payable in a wrongful death action ( see, Hanson v. County of Erie, 120 A.D.2d 135, 138, 507 N.Y.S.2d 778; Windus v. Baker, 67 A.D.2d 833, 834,...