Upon the commencement of a personal injury action a plaintiff waives the physician-patient privilege of confidentiality and no longer possesses relevant protected health information. ( Anker v Brodnitz, 98 Misc 2d 148, 73 AD2d 589, 51 NY2d 703, 743; Koump v Smith, 25 NY2d 287; Dillenbeck v Hess, 73 NY2d 278; People v Edney, 39 NY2d 620; People v AlKanani, 33 NY2d 260; Capron v Douglass, 193 NY 11; People vBloom, 193 NY 1; Strader v Collins, 280 App Div 582; Luce v State of New York, 266 AD2d 877; Tiborsky v Martorella, 188 AD2d 795.) II. The ex parte interview of any nonparty fact witness — medical or not — conducted subsequent to the institution of a personal injury lawsuit — constitutes trial preparation which is both the obligation and right of every trial attorney.
Further, it would seem obvious that plaintiff's physical illness and the degree of its stage of advancement may manifest itself by other physical and mental side-effects. One prosecuting a claim such as this may not use his illness as both sword and shield (cf., Capron v Douglass, 193 N.Y. 11, 17).