Sibley by Sibley v. Hayes 73 Corp.

• Decision Date: 20 January 1987
• Citation: 511 N.Y.S.2d 65,126 A.D.2d 629
• Parties: Michael SIBLEY, an Infant, BY His Mother and Natural Guardian, Lynda R. SIBLEY, Respondent, v. HAYES 73 CORPORATION, etc. Defendant, Alfred Simon Schloss, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 65

511 N.Y.S.2d 65

126 A.D.2d 629

Michael SIBLEY, an Infant, BY His Mother and Natural Guardian, Lynda R. SIBLEY, Respondent, v. HAYES 73 CORPORATION, etc. Defendant Alfred Simon Schloss, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Jan. 20, 1987.

Martin, Clearwater & Bell, New York City (Raymond F. Slattery, of counsel), for appellants.

Pegalis & Wachsman, P.C., Great Neck (Paul A. Krez, of counsel), for respondents.

Before THOMPSON, J.P., and WEINSTEIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover for medical malpractice, the defendants Alfred Simon Schloss, M.D., and Albert D. Weisz, M.D., appeal from so much of an order of the Supreme Court, Queens County (Graci, J.), dated August 5, 1985, as denied their cross-motion for an order directing the plaintiff to provide authorizations permitting them to obtain the medical records of the infant plaintiff's mother.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The instant medical malpractice action was instituted on behalf of the infant plaintiff by his mother, Lynda Sibley, against the appellants Physician's Hospital, the obstetrician Dr. Alfred Schloss and the pediatrician Dr. Albert Weisz. It is alleged that as a result of the negligence of the appellant doctors and hospital in the prenatal and postnatal care, the infant plaintiff, inter alia, sustained injuries to his central nervous system. The plaintiff's bill of particulars alleged that the acts of negligence by the appellants included their failure "to take and record the patient's symptoms, history of present illness, family history, social history, medical history, and a careful, full and complete review of systems" and further alleged the appellants' failure "to read and review past and current medical and hospital records, so as to be cognizant and aware of the mother's and infant's condition and progress".

The appellants sought to obtain authorizations for medical records relating to the medical history of the infant plaintiff's mother, Lynda Sibley, including the period both prior to and subsequent to her pregnancy with the infant plaintiff. By order dated August 5, 1985, Special Term denied the appellants' application for production of the medical authorizations. This appeal ensued.

This court has consistently held that a plaintiff who sues in a representative capacity as mother and natural guardian of an infant does not thereby place her own medical history in issue and waive her physician-patient privilege (see, e.g., Yetman v. St. Charles Hosp., 112 A.D.2d 297, 298, 491 N.Y.S.2d 742; Herbst v. Bruhn, 106 A.D.2d 546, 547, 483 N.Y.S.2d 363; Schlarlack v. Richmond Mem. Hosp., 102 A.D.2d 886, 477 N.Y.S.2d 184). The plaintiff has conceded both before Special Term and on appeal that the mother's medical records pertaining to the period when the infant was in utero are discoverable on the ground that there can be no severance of the infant's prenatal history from his mother's medical history (see, Yetman v. St. Charles Hosp., supra; Herbst v. Bruhn, supra; Schlarlack v. Richmond Mem. Hosp., supra ). With respect to the mother's other medical records, the plaintiff argues correctly that they remain protected by the physician-patient privilege (CPLR 4504).

The appellants argue, however, that the privilege was waived by the allegations in the plaintiff's bill of particulars which refer to the mother's medical history. The appellants further argue that a letter of July 11, 1984, from the law firm representing the plaintiff, indicating that the remaining authorizations requested by the appellants would be forthcoming, constitutes a waiver of the privilege. We disagree.

In neither Hughson v. St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 463 N.Y.S.2d 224, nor Schlarlack v. Richmond Mem. Hosp. (supra), did this court find a waiver of the privilege on the basis of references to a mother's medical history, similar to those involved at bar, in the plaintiff's bill of particulars. In addition, the privilege is personal to the mother and could not be waived in the manner suggested...