Summary
In Felix v. Lawrence Hosp. Ctr., 100 A.D.3d 470, 953 N.Y.S.2d 505 [1st Dept. 2012], we denied discovery because the defendants sought the subsequent obstetrical records of a plaintiff whose only subsequent claim for damages related to emotional and psychological, not physical, injuries.
Summary of this case from Gumbs v. Flushing Town Ctr. Iii, L.P.Opinion
2012-11-13
Carmen FELIX, Plaintiff–Respondent, v. LAWRENCE HOSPITAL CENTER, et al., Defendants, Edwin Pan, M.D., Defendant–Appellant.
Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), for appellant. Pegalis & Erickson, LLC, Lake Success (Rhonda L. Meyer of counsel), for respondent.
Martin Clearwater & Bell LLP, New York (Stewart G. Milch of counsel), for appellant. Pegalis & Erickson, LLC, Lake Success (Rhonda L. Meyer of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura Douglas, J.), entered March 24, 2011, which, insofar as appealed, denied defendant Edwin Pan's motion to compel plaintiff to provide authorizations for medical records pertaining to subsequent obstetrical treatment and granted plaintiff's cross-motion for a protective order regarding the same records, unanimously affirmed, without costs. Order, same court and Justice, entered February 24, 2012, which, to the extent appealable, denied defendant's motion for leave to renew, unanimously affirmed, without costs.
In this action for medical malpractice, plaintiff alleges that defendants' departure from accepted standards of medical practice in connection with the treatment of her pregnancy, resulted in the stillborn birth of her child. While plaintiff alleges physical injuries in connection with her hospitalization, the only subsequent injuries alleged relate to her emotional and psychological condition. Plaintiff has waived the physician-patient privilege only as to those conditions affirmatively placed in controversy. She has not placed her subsequent obstetrical treatment in controversy since her claims relate only to subsequent emotional and psychological injuries ( see Tirado v. Koritz, 77 A.D.3d 1368, 1369, 908 N.Y.S.2d 793 [4th Dept. 2010] ) and defendants have failed to establish a particularized need ( see Elmore v. 2720 Concourse Assoc., L.P., 50 A.D.3d 493, 855 N.Y.S.2d 528 [1st Dept. 2008] ).
On renewal, defendant failed to assert additional material facts which existed at the time of the original motion but were not known to him that would change the prior determination ( seeCPLR 2221[e] ). The only new evidence consisted of the testimony of plaintiff's boyfriend, whose testimony was duplicative of plaintiff's earlier testimony.
We have considered defendant's remaining arguments and find them unavailing.