Opinion
July 31, 1951.
William A. Hyman for plaintiff.
Cotter, Carey Schultz for Irving B. Safferstone and another, defendants.
Martin Clearwater for Thomas Miles, defendant.
Application pursuant to section 296-a of the Civil Practice Act to take the testimony of the chief anesthetist of Mary Immaculate Hospital, and to have the records of said hospital produced before a Referee to be appointed by the court.
Inasmuch as it appears that the chief anesthetist mentioned in the moving papers had no personal contact with the plaintiff herein, took no part in the preparation or administration of the particular anesthetic of which he complains, and at no time attended the plaintiff in a professional capacity at Mary Immaculate Hospital or elsewhere, the provisions of section 296-a of the Civil Practice Act are inapplicable. The section provides in part that the testimony of a physician shall be taken "as to information which he acquired in attending a patient in a professional capacity, at such hospital". (Italics supplied.) Since Dr. Ansbro never attended the plaintiff in Mary Immaculate Hospital or elsewhere in a professional capacity, nor acquired any information concerning the plaintiff's situation, it is difficult to see how he may be examined under the foregoing section of the Civil Practice Act.
The motion is accordingly denied, without prejudice.
Submit order.