Weiss, Matter of
| Citation | 208 Misc. 1010,147 N.Y.S.2d 455 |
| Parties | Application of Meyer WEISS to take the testimony of Mount Sinai Hospital. |
| Decision Date | 03 November 1955 |
| Court | United States State Supreme Court (New York) |
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.
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 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 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 hospital objects upon the ground that, in this department, examination and discovery are impermissible in these circumstances, and it relies upon Matter of Hufstutler, 220 App.Div. 587, 222 N.Y.S.2d 43, decided in 1927. The case seems to be generally in point, although it is conceded by the respondent that the appellate authorities in the other departments are squarely to the contrary. Matter of Weil, 2nd Dept., 25 App.Div. 173, 49 N.Y.S. 133; Peterman v. Schpelman, 2nd Dept., 274 App.Div. 901, 82 N.Y.S.2d 811; Matter of Strope, 3rd Dept., 263 App.Div. 765, 30 N.Y.S.2d 860; Lauffer v. Eastern Star Temple, 4th Dept., 210 App.Div. 619, 207 N.Y.S.2d 292.
I know that I should not ordinarily ignore a binding appellate precedent in my own department. And I would not normally do so--were all things equal. I do not think, however, that they are. I have long been of the view that, in these practice matters (such as examinations, discoveries and the like), contrariety of opinion among the several departments--certainly as between the first and second, where both have contiguous jurisdiction in the metropolitan area of New York City--is generally baseless and always confusing and disturbing. Indeed, '[i]nstead of being a struction in aid of uniformity, Brooklyn Bridge [again, and unfortunately] seems to be a point of judicial departure.' Parker v. Burgoyne, 167 Misc. 542, 543, 5 N.Y.S.2d 403, 404. I should not like to aid in freezing that disagreement unless I must--and in the circumstances here I do not think that I must.
In the first place, even in this department,...
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Gotkin v. Miller, 74-C-584.
...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 records to p......
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