Williams by Williams v. Roosevelt Hosp.

• Decision Date: 16 April 1985
• Citation: 108 A.D.2d 9,487 N.Y.S.2d 767
• Parties: Rashan WILLIAMS, an infant by his father and natural guardian, Nicholas WILLIAMS and Nicholas Williams, individually, Plaintiffs-Respondents, v. ROOSEVELT HOSPITAL, Richard Michner, M.D. and Jeanne Kobritz, Defendants-Appellants, and Barbara Shortle, M.D., Thomas D. Robinson, M.D., Ernst Bartsich, M.D. and Hamid Mootabar, M.D., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 767

487 N.Y.S.2d 767

108 A.D.2d 9

Rashan WILLIAMS, an infant by his father and natural guardian, Nicholas WILLIAMS and Nicholas Williams individually, Plaintiffs-Respondents, v. ROOSEVELT HOSPITAL, Richard Michner, M.D. and Jeanne Kobritz, Defendants-Appellants and Barbara Shortle, M.D., Thomas D. Robinson, M.D., Ernst Bartsich, M.D. and Hamid Mootabar, M.D., Defendants.

Supreme Court, Appellate Division,

First Department.

April 16, 1985.

Howard R. Cohen, New York City, of counsel (Bower & Gardner, New York City, attorneys), for defendants-appellants.

Jay F. Meisenberg, Great Neck, of counsel (Pegalis & Wachsman, P.C., Great Neck, attorneys), for plaintiffs-respondents.

Before KUPFERMAN, J.P., and ROSS, CARRO and BLOOM, JJ.

KUPFERMAN, Justice Presiding.

Plaintiffs, an infant and his father, brought this medical malpractice action alleging that due to the defendants' obstetrical management of the labor and delivery, the infant-plaintiff suffered brain damage and an injury which resulted in a palsy of his upper right extremity and hand.

Plaintiffs produced the mother as a non-party witness for examination. Defendant's counsel was able to elicit the fact that the mother had two previous children. However, when counsel tried to determine whether either of them had any physical or congenital problems, plaintiff's counsel objected, claiming a privilege. After defense counsel had further determined that the mother had also had an abortion, plaintiff's counsel objected to any questioning relative to the mother's medical history. Defendants' motion for a further examination of the mother was denied. We reverse.

CPLR section 3101(a) requires full disclosure and is designed to promote liberal discovery. It is tempered by section 3101(b), which states that upon objection, privileged matter will not be obtainable. CPLR section 4504(a) provides a privilege for information given by a patient to a doctor for professional purposes, in confidence. Plaintiffs combine sections 3101(b) with 4504(a) for the proposition that the infant-plaintiff's mother is privileged from testifying about her medical history, or the medical history of her two other children. As authority, the plaintiffs cite the Second Department case of Hughson v. St. Francis Hospital of Port Jervis, 93 A.D.2d 491, 463 N.Y.S.2d 224.

In Hughson, the Second Department allowed the infant plaintiff's non-party mother to assert a privilege and refuse to testify about her own or her other children's medical history. However, the court held that if the mother asserted this privilege, the infant-plaintiff would be precluded from introducing any of this evidence at trial.

This situation should first be distinguished from Mullarkey v. Misericordia Hospital Medical Center, 104 A.D.2d 1064, 481 N.Y.S.2d 936. That case sought written authorization for the mother's past medical history and medical records of the infant plaintiff's siblings. In that respect it was similar to Burgos v. Flower & Fifth Avenue Hospital, 108 Misc.2d 225, 437 N.Y.S.2d 218. Those defendants also wanted the medical records of an infant plaintiff, his siblings and his mother. In both of those cases, the defendants were seeking records, as opposed to witness testimony at an examination, which is at issue here. It is possible that records could contain information furnished to the physician in confidence. Thus, those documents could be privileged.

Hughson states "She [the infant plaintiff's mother] is not a party to this lawsuit, and She has not put in issue her physical condition, medical history or family history." (Emphasis in original). 93 A.D.2d at 500, 463 N.Y.S.2d 224. Nonetheless, the mother must necessarily put her medical history in issue. The Hughson court recognized the necessity of the mother testifying about her condition during the time the infant plaintiff was in utero. However, the mother's medical history neither begins nor ends at the infant plaintiff's birth. The mother's past medical history is relevant.

The court here at Special Term, while indicating its conclusion that disclosure should be permitted felt constrained to follow the Hughson result. In our view, there is no privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity. CPLR section 4504(a). To the extent that the Hughson decision is to the contrary, we do not follow it.

Accordingly, the order of the Supreme Court, New York County (Gammerman, J.), entered on February 24, 1984, denying the defendants' motion for a further examination before trial of the non-party witness, Mrs. Marian Williams should be reversed, on the law, without costs, the motion granted, and the examination of Mrs. Williams permitted provided that notice by the defendants is given to the witness not less than 30 days from the date of such examination, or at such time and place as the parties may agree.

Order, Supreme Court, New York County, entered on February 24, 1984, reversed, on the law, without costs and without disbursements, the motion granted, and the examination of Mrs. Williams permitted provided that notice by the defendants is given to the witness not less than 30 days from the date of such examination, or at such time and place as the parties may agree.

KUPFERMAN, J.P., and ROSS and BLOOM, JJ., concur.

All concur except CARRO, J., who dissents in an Opinion.

CARRO, Justice (dissenting).

Under constraint of our most recent decision on the instant subject, Mullarkey v. Misericordia Hospital, 104 A.D.2d 1064, 481 N.Y.S.2d 936, and the Court of Appeals decision of Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 135-136, 463 N.Y.S.2d 758, 450 N.E.2d 678, which unequivocally states that exceptions to the physician-patient privilege are for the legislature to enact, I would affirm the order below and, accordingly, dissent.

Plaintiffs, Rashan Williams, an infant, and his father, as natural guardian, brought this action for damages allegedly resulting from the obstetrical mismanagement of the labor and delivery and aftercare rendered to the infant-plaintiff. The infant has brain damage, resulting in brain dysfunction and retardation, and palsy of the upper right extremity and hand. On June 29, 1983, plaintiffs produced the mother, Marian Williams, for pre-trial examination as a non-party witness, at which time defense counsel learned of her two other children, born previous to the infant-plaintiff. When defense counsel attempted to question the mother as to any congenital or other physical problem of these older children, plaintiff's counsel objected on the ground that the medical history of the infant-plaintiff's siblings was privileged. Counsel also objected to any questioning of the mother's medical history, except for the period of time when infant-plaintiff was in utero.

Thereafter, by notice of motion, counsel for defendant moved for an order directing that Marian Williams appear for further examination to answer questions pertaining to her prior medical history and the medical and physical condition of infant-plaintiff's siblings. While disagreeing with the fairness of the result in Hughson v. St. Francis Hospital of Port Jervis, 93 A.D.2d 491, 463 N.Y.S.2d 224, a case on all fours with the instant one, Special Term was, nevertheless, constrained by Hughson to deny the motion on the ground that the information sought was protected by the physician-patient privilege. In the face of overwhelming case law, all of which upholds the privilege in identical fact situations, I would affirm Special Term's order.

CPLR section 3101(a), which provides for full disclosure of all evidence material and relevant to a prosecution or defense, is expressly limited by section 3101(b), which states that upon objection of a party, privileged matter is nondiscoverable. The physician-patient privilege, a creature of statute, is found in CPLR section 4504(a). It provides a privilege for any information confidentially acquired by a physician in attending a patient in a professional capacity. The purpose underlying the privilege is to foster full disclosure by the patient to his doctor so as to ensure proper diagnosis and treatment. Grand Jury Proceedings (Doe), 56 N.Y.2d 348, 352, 452 N.Y.S.2d 361, 437 N.E.2d 1118.

In interpreting the scope and application of a statutorily created privilege it is an oft-stated principle that the statute creating a privilege must be given a broad and liberal construction in favor of the protection of confidential communications, while a statute waiving or suspending the privilege must be "strictly construed and confined to the specific exception created by it." Matter of Investigation of Criminal Abortions in County of Kings, 286 App.Div. 270, 274, 143 N.Y.S.2d 501, lv. den. 309 N.Y. 1031, 129 N.E. 792. More to the point, the Court of Appeals recently explicitly rejected the notion that judicial exceptions to the privilege can be created. In Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 463 N.Y.S.2d 758, 450 N.E.2d 678, the court adamantly refused to carve an exception to the privilege so as to permit the District Attorney to require a hospital to divulge the names and addresses of those treated for stab or knife wounds during a particular time period, despite the State's argument that the important public interest in investigating homicides overrode the need for the privilege. Id. at 135-136, 463 N.Y.S.2d 758, 450 N.E.2d 678. The court noted that the District Attorney could point to no "explicit declaration of legislative intention to permit the privilege to be overridden." Id. at 135, 463 N.Y.S.2d 758, 450 N.E.2d 678. After citing the many instances when the legislature did enact exceptions to the privilege, the court further stated that "[t]hose exceptions to the privilege make clear the legislative concept that exceptions to the statutorily...