Opinion
November 6, 1967
In an action to recover damages for personal injury sustained by the infant plaintiff and for medical expenses and loss of services arising out of alleged medical malpractice, plaintiffs appeal (1) from so much of an order of the Supreme Court, Suffolk County, dated January 24, 1967 as on defendant's motion directed plaintiffs to furnish to defendant a copy of an alleged report of a physician who had examined certain X rays and (2) from an order of said court dated June 23, 1967 which directed that said physician be examined before trial or, in the alternative, furnish a written report to defendant. Orders reversed insofar as appealed from, without costs, and defendant's motions denied in their entirety. In our opinion, the subject matter in question is immune from disclosure as material created in preparation for litigation (CPLR 3101, subd. [d], par. 2; see, Silberberg v. Hotpoint Div. of Gen. Elec. Co., 23 A.D.2d 754). The findings of the physician, having been based merely on his inspection of X rays and not on a physical or clinical examination of the infant plaintiff, are not available to defendant as part of the conventional exchange of medical information in a negligence action (CPLR 3121; Gugliano v. Levi, 24 A.D.2d 591, 592). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.