Stortz v. Richard S. Koplin, Opthalmic Consultants. P.C.
| Decision Date | 13 December 2017 |
| Docket Number | Index No: 805061/2014 |
| Citation | 2017 NY Slip Op 32620 (U) |
| Parties | Robert K. Stortz, Plaintiff, v. Richard S. Koplin, Opthalmic Consultants. P.C., New York Eye and Ear Infirmary IPA, Inc., and The New York Eye and Ear Infirmary Ophthalmology Associates, P.C., Defendants. |
| Court | New York Supreme Court |
This is a medical malpractice action concerning allegations, inter alia, that defendant Richard S. Koplin ("Dr. Koplin") negligently performed left cataract extraction with intraocular lens implant on December 15, 2012, and right cataract extraction with intraocular lens implant on April 18, 2011, on plaintiff Robert K. Stortz ("Stortz").
Stortz filed his initial Verified Bills of Particulars on December 3, 2014. On November 16, 2015, Stortz filed a Supplemental Bill of Particular, claiming past and future lost earnings. Stortz filed an additional four Supplemental Bills of Particulars. Stortz has claimed damages for past and future lost earnings in the amount of $700,000.
Stortz was deposed on January 11, 2017. Stortz testified to cardiac conditions of exertional angina and the need for a coronary angiographic procedure and placement of two coronary stents in December 2012 and July 2016. On or about January 25, 2017, Defendant served upon Stortz a demand for authorizations to obtain the records for Stortz's current treating Florida cardiologist, ophthalmologist, optometrist and for Holy Cross Hospital, a Florida hospital where Stortz testified he received treatment.
On June 19, 2017, Defendants brought a motion to compel Stortz to provide various authorizations, including the records for his cardiologist and hospital stays at Holy Cross Hospital. Stortz opposed the motion.
On August 8, 2017, all parties presented oral argument on Defendants' motion to compel before this Court. Stortz was ordered to produce all items of discovery included in the motion except for certain private financial records. Stortz was ordered, inter alia, to produce Arons authorizations for his subsequent treating ophthalmologists, subsequent treating optometrist, authorizations for all treating cardiologists, including the records from plaintiff's 2012 and 2016 coronary angiogram procedures; and an authorization for Holy Cross Hospital.
Stortz has refused to provide the authorizations from his treating cardiologists and for Holy Cross Hospital. By notice of motion filed on September 22, 2017, Stortz moves for a protective order pursuant to CPLR 3101(a) to prohibit disclosure of these records and submits the records at issue for in camera review. Defendants oppose.
Stortz argues that a protective order is warranted because the medical records sought do not relate to the claimed injuries in this case. Stortz argues that to the extent that Defendants are seeking to establish a possible impact on Stortz's life expectancy, Stortz argues that this would "create confusion to an eventual jury, or can otherwise disadvantage or prejudice Mr. Stortz during the trial, but it is also improper because Mr. Stortz is not claiming that the injuries sustained by defendants are shortening his life span, he is merely claiming loss of wages through retirement." Stortz further argues that "[a] better predictor of life expectancy, however, is how Mr. Stortz is currently doing despite any past treatments or injuries that have nothing to do with the injuries claimed in this lawsuit."
Defendants, in turn, argue that Stortz has failed to establish the need for a protective order. Defendants argue that the records sought are directly related to Stortz's claims for future lost earnings, which totals $700,000 according to Stortz's seventh Supplemental Bill of Particulars. Defendants assert, "In calculating future lost earnings, plaintiffs work-life expectancy must factor in plaintiff's medical history, which includes exertional angina and need for a coronary angiographic procedure, with placement of 2 coronary stents in December 2012 and July 2016, and may also include additional procedures or conditions that the Defendants are unaware of." Defendants further assert, "[c]alculating plaintiff's work-life expectancy is an issue to be determined by a finder of fact, not by plaintiff, his counsel or one treating cardiologist Dr. Niederman." Defendants further argue that Stortz's motion for a protective order is untimely and improper because Stortz should have cross-moved for a protective order when he submitted opposition toDefendants' underlying motion to compel discovery that was argued before the Court at oral argument on August 8, 2017.
CPLR § 3103[a] provides that a protective order may be warranted in order "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." CPLR § 3101[a] generally provides that, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has held that the term "material and necessary" is to be given a liberal interpretation in favor of the disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity," and that "[t]he test is one of usefulness and reason." (Allen v. Cromwell-Collier Publishing Co., 21 N.Y.2d 403, 406 [1968]).
"It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue." (Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457 [1983] [citations and footnote omitted]). "[A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party's claim." (Dillenbeck v. Hess, 73 N.Y.2d 278, 287 [1989]). "[O]nce the patient has voluntarily presented a picture of his or her medical condition to the court in a particular court proceeding, it is only fair and in keeping with the liberal discovery provisions of the CPLR to permit the opposing party to obtain whatever information is necessary to present a full and fair picture of that condition." (Matter of Farrow v. Allen, 194 A.D.2d 40, 45-46 [1st Dept 1993]). "However, it is equally well-settled that '[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments.'" (McLeod v. Metro. Transp. Auth., 47 Misc. 3d 1219(A), 17 N.Y.S.3d 383 (N.Y. Sup. Ct. 2015) (citations omitted).
In Gumbs v. Flushing Town Center III, L.P, 114 A.D. 3d 573, 573 [1st Dept 2014]), the plaintiff sought to recover damages for orthopedic injuries he sustained. Defendants sought authorizations for the release of records of the plaintiff's cardiologist and primary care physician. The defendants moved for an order striking the complaint due to the plaintiff's failure to provide the requestedauthorizations claiming that "[p]laintiff certainly has placed his medical condition in issue and has also placed his ability to work in the future at issue as well as his life expectancy." (Id. at 574). The plaintiff opposed the motion based on the physician-patient privilege. (Id.) The lower court denied the motion on the grounds that defendants had not shown that the records sought were related to the claimed injuries. (Id.) By a...
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