Shapiro v. Levine
| Decision Date | 01 October 1984 |
| Citation | 479 N.Y.S.2d 1006,104 A.D.2d 800 |
| Parties | Geri Debra SHAPIRO, Respondent, v. Jack LEVINE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gordon & Silber, P.C., New York City (Peter P. Traub, Jr. and Sanford Gold, New York City, of counsel), for appellant.
Morris J. Eisen, P.C., New York City (Steven Di Joseph and Edward P. Dunphy, New York City, of counsel), for respondent.
Before RUBIN, J.P., and BOYERS, LAWRENCE and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated December 8, 1983, which denied his motion for a further examination before trial of plaintiff.
Order affirmed, with costs.
As a result of an automobile accident, plaintiff suffered an injury to her clavicle. Plaintiff was treated for this injury by three physicians before seeking defendant's medical services. The gravamen of this medical malpractice action is plaintiff's allegation that defendant's treatment aggravated her injury and prolonged the healing time.
At plaintiff's examination before trial, defense counsel inquired about conversations that plaintiff had with her previous attending physicians regarding their diagnosis and prognosis for her injured clavicle and their prescribed treatment. Counsel for plaintiff voiced a hearsay objection and directed plaintiff not to respond to this line of questioning. To compel plaintiff to disclose the substance of said conversations, defendant moved for a further examination before trial of her. Special Term denied the motion on the ground that the "questions were improper".
While plaintiff's testimony concerning what her prior treating physicians told her is clearly hearsay, that would not protect her from disclosure pursuant to CPLR 3101 which requires the revelation of inadmissible testimony that may lead to discovery of admissible evidence (Prink v. Rockefeller Center, 48 N.Y.2d 309, 314, 422 N.Y.S.2d 911, 398 N.E.2d 517; Baxter v. Orans, 63 A.D.2d 875, 405 N.Y.S.2d 470; Shutt v. Pooley, 43 A.D.2d 59, 60, 349 N.Y.S.2d 839). Nevertheless, we concur with Special Term's conclusion that the questions were improper as disclosure of the subject conversations for the purported purpose of establishing the extent to which plaintiff, a lay person, understood her previous physicians' expert opinions regarding the nature of her injury and her prospects for recovery are not relevant to any issue in this malpractice action. For example, defendant argues that discovery of an unduly optimistic prognosis by a previous attending physician may explain plaintiff's dissatisfaction with the treatment prescribed by defendant. However, the standard by which defendant's treatment will be measured in a malpractice action is not predicated upon plaintiff's expectations.
This decision is not intended to foreclose defendant from discovering plaintiff's medical history. Since plaintiff has placed her physical condition at issue by commencing this...
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