Weiss, Matter of

CourtUnited States State Supreme Court (New York)
Writing for the CourtMATTHEW M. LEVY
Citation208 Misc. 1010,147 N.Y.S.2d 455
Decision Date03 November 1955
PartiesApplication of Meyer WEISS to take the testimony of Mount Sinai Hospital.

Page 455

147 N.Y.S.2d 455
208 Misc. 1010
Application of Meyer WEISS to take the testimony of Mount
Sinai Hospital.
Supreme Court, Special Term, New York County, Part I.
Nov. 3, 1955.

[208 Misc. 1011] John J. Tullman, New York City, for Meyer Weiss, petitioner.

John P. Smith, New York City (Alan W. Craig, New York City, of counsel), for Mt. Sinai Hospital, respondent.

MATTHEW M. LEVY, Justice.

The petitioner was a patient in the respondent hospital. He was there operated upon. Asserting that the physicians who treated him at the hospital were negligent and caused him injury, he is desirous of instituting an action for malpractice against them. But it appears that he does not know the names of the doctors, and that the hospital has refused--absent the personal consents of the doctors themselves--to inform the patient as to who the doctors were or to let him inspect the hospital records with reference to his treatment, so that he might ascertain the identity

Page 456

of the one or more persons he could with propriety name as defendants in his prospective suit.

It is obvious that, unless the patient knows whom to sue, his cause--even if a good one--will nevertheless be lost. He cannot name a defendant in a vacuum or serve process upon a 'John Doe' without proper identification. In the circumstances--invoking Sections 295 and 296 of the Civil Practice Act--he has instituted this special proceeding to compel the hospital to submit to examination by a proper administrative officer having knowledge and to produce the records for inspection and copy. His frank purpose--before the commencement of suit--is to seek to ascertain whom he might [208 Misc. 1012] sue. And in his petition, the patient presents some indicia of a possible meritorious claim for malpractice against some one. The records sought are of the patient himself. The hospital is not entitled to withhold the records from the patient for the purpose of concealing the identity of those who operated upon the treated the patient. The well-recognized fraternal comradeship in the medical profession--while all to the good in many respects--cannot be permitted to effect a possible injustice. The patient-physician privilege is not a bar, because it is the patient himself who wants the imformation about himself. Civ.Prac.Act, §§ 352, 354; cf. Becker v. City of New York, 208 Misc. 744, 145 N.Y.S.2d 22.

I should have supposed, therefore, that the relief requested would, in the interests of justice, be granted as a matter of course. But the...

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14 practice notes
  • Cynthia B. v. New Rochelle Hosp. Medical Center
    • United States
    • United States Court of Appeals (New York)
    • December 1, 1983
    ...the medical treatment rendered by that party (see Matter of Warrington [State of New York ], 303 N.Y. 129, 100 N.E. 170; Matter of Weiss, 208 Misc. 1010, 147 N.Y.S.2d This appeal presents a novel issue: when a patient, who is a party to a malpractice action, has waived the privilege of conf......
  • Gotkin v. Miller, No. 477
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1975
    ...law, patients are entitled to a court order granting them access to their records for purposes of litigation. See Application of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455 (Sup.Ct.1955); In re Greenberg's Estate, 196 Misc. 809, 89 N.Y.S.2d 807 (Sup.Ct.1949); Hoyt v. Cornwall Hospital, 169 Misc......
  • Gotkin v. Miller, No. 74-C-584.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 24, 1974
    ...of pending litigation. All of the New York cases upon which the plaintiffs rely are inapposite. For example, in Application of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455 (Sup.Ct.N.Y.Co.1955), the court held, in the context of a malpractice action, that a hospital may not withhold a patient's r......
  • Dewhirst, Application of
    • United States
    • United States State Supreme Court (New York)
    • January 16, 1957
    ...6, 37 N.Y.S.2d 115, affirmed 265 App.Div. 1029, 38 N.Y.S.2d 925; Matter of Strope, 263 App.Div. 765, 30 N.Y.S.2d 860; Matter of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455; Application of Kaufman, Sup., 143 N.Y.S.2d The application to permit examination as to the substance of what the employees......
  • Request a trial to view additional results
14 cases
  • Cynthia B. v. New Rochelle Hosp. Medical Center
    • United States
    • United States Court of Appeals (New York)
    • December 1, 1983
    ...the medical treatment rendered by that party (see Matter of Warrington [State of New York ], 303 N.Y. 129, 100 N.E. 170; Matter of Weiss, 208 Misc. 1010, 147 N.Y.S.2d This appeal presents a novel issue: when a patient, who is a party to a malpractice action, has waived the privilege of conf......
  • Gotkin v. Miller, No. 477
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1975
    ...law, patients are entitled to a court order granting them access to their records for purposes of litigation. See Application of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455 (Sup.Ct.1955); In re Greenberg's Estate, 196 Misc. 809, 89 N.Y.S.2d 807 (Sup.Ct.1949); Hoyt v. Cornwall Hospital, 169 Misc......
  • Gotkin v. Miller, No. 74-C-584.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 24, 1974
    ...of pending litigation. All of the New York cases upon which the plaintiffs rely are inapposite. For example, in Application of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455 (Sup.Ct.N.Y.Co.1955), the court held, in the context of a malpractice action, that a hospital may not withhold a patient's r......
  • Dewhirst, Application of
    • United States
    • United States State Supreme Court (New York)
    • January 16, 1957
    ...6, 37 N.Y.S.2d 115, affirmed 265 App.Div. 1029, 38 N.Y.S.2d 925; Matter of Strope, 263 App.Div. 765, 30 N.Y.S.2d 860; Matter of Weiss, 208 Misc. 1010, 147 N.Y.S.2d 455; Application of Kaufman, Sup., 143 N.Y.S.2d The application to permit examination as to the substance of what the employees......
  • Request a trial to view additional results

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