Opinion
December 31, 1998
Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Discovery.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court abused its discretion in granting defendants' motion and cross motions to compel plaintiff to disclose all his State and Federal income tax returns. Although defendants may be entitled to discovery of the tax returns of plaintiff, who is self-employed and seeks damages for loss of earnings (see, Scholte v. Agway, Inc., 152 A.D.2d 928, 929; see also, Lane v. D'Angelos, 108 A.D.2d 727; Berger v. Fete Cab Corp., 57 A.D.2d 784), the court should have afforded plaintiff an in camera review of the tax returns in question to determine whether full disclosure is required and to minimize the intrusion into plaintiff's privacy (see, ICC Chem. Corp. v. Klein, 243 A.D.2d 402, 403).
The court further abused its discretion in compelling plaintiff to provide authorizations for medical records that "will allow defendants to obtain any and all medical records from the beginning of time to the present date concerning plaintiff's physical, emotion [ sic], psychiatric and mental conditions". A plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that his physical or mental condition is affirmatively placed in controversy (see, Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457; McGuane v. M.C.A., Inc., 182 A.D.2d 1081, 1082). That waiver, however, "does not permit wholesale discovery of information regarding the protected party's physical and mental condition. The waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments" (Iseman v. Delmar Medical-Dental Bldg., 113 A.D.2d 276, 279). Here, although defendants are entitled to plaintiff's medical records concerning prior related illnesses and treatments, the court, in compelling the production of all records "from the beginning of time", abused its discretion (see, Sgambellone v. Wheatley, 165 Misc.2d 954, 957-958).
We therefore modify the order by vacating the first and second ordering paragraphs, and we remit the matter to Supreme Court to review plaintiff's medical records to determine whether any of the records are material and related to physical or mental conditions that plaintiff has placed in controversy and, in order to protect plaintiff's privacy as much as possible, to redact any portions of the records or tax returns that are irrelevant or unduly prejudicial. The services of a Referee may be utilized for that purpose (see, Cynthia B. v. New Rochelle Hosp. Med. Ctr., supra, at 456).
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.