Opinion
November 24, 1964
Harry H. Lipsig for plaintiff.
Martin, Clearwater Bell for New York Hospital, defendant.
Barry, Treanor, Shandell Zachary for J. Russell Twiss, defendant.
The individual defendant moves for discovery and inspection of the plaintiff's psychiatric record at Bellevue Hospital. By cross motion, the defendant hospital moves for the same relief. In opposition, the plaintiff avers that exchange of medical information is not provided for in malpractice cases by the rules of this court. The City of New York appears on behalf of Bellevue Hospital and seeks protection of the court if the motion is granted. While rule XI of the New York and Bronx Counties Supreme Court Rules provides for an exchange of medical information, except in malpractice cases, CPLR 3120 and 3121 allow discovery and inspection and an examination of a party where the mental or physical condition is in controversy. The CPLR takes precedence over the rules. If the defendants can have a mental examination with the production of hospital records pursuant to CPLR 3121, they cannot be deprived of discovery and inspection of the hospital records which are under the control of the plaintiff, in that they can be procured by authorizations.
Accordingly, the motion and cross motion are granted. Settle order providing for the protection of the hospital involved, by limiting the discovery as indicated in its affidavit.