Opinion
101945/09
08-05-2011
Angel Hunter, an infant, by his mother and natural guardian LISA AVETA and LISA AVETA, individually, Plaintiffs v. Richmond University Medical Center; MICHAEL MORETTI, M.D. and MARINO A. POLISENO, D.O., Defendants.
Plaintiffs are represented by the law firm of Fitzgerald & Fitzgerald, P.C. Defendant Richmond University Medical Center is represented by the law firm of Bartlett, McDonough, Bastone & Monaghan, LLP. Defendant Michael Moretti, M.D. is represented by the law firm of Heidell, Pittoni, Murphy & Bach, LLP. Defendant Marino A. Poliseno, D.O. is represented by the law firm of Vaslas, Lepowsky, Hauss & Danke, LLP.
Plaintiffs are represented by the law firm of Fitzgerald & Fitzgerald, P.C. Defendant Richmond University Medical Center is represented by the law firm of Bartlett, McDonough, Bastone & Monaghan, LLP. Defendant Michael Moretti, M.D. is represented by the law firm of Heidell, Pittoni, Murphy & Bach, LLP. Defendant Marino A. Poliseno, D.O. is represented by the law firm of Vaslas, Lepowsky, Hauss & Danke, LLP.
, J.
The plaintiffs seek a protective order against the defendants Richmond University Medical Center (RUMC), Michael Moretti, MD and Marino A. Poliseno, DO, to preclude discovery of any and all medical records concerning treatment or diagnosis of the plaintiff Lisa Aveta either before or after her pregnancy with the infant plaintiff Angel Hunter. The protective order is granted as to Aveta's medical treatments and diagnoses after the birth of Hunter, and these records are precluded from discovery. The protective order is denied as to Aveta's medical, gynecological and obstetrical records before Hunter's birth, and such discovery is granted to all the defendants.
Facts
During a deposition, Aveta, the infant plaintiff's mother, stated that her family history included brain tumors, diabetes, Chromosomal Trisomy 21 "Down's Syndrome," and deafness. Aveta has a personal history of seizure disorder and asthma, and has had gynecological surgery. Aveta also stated she previously had fourteen pregnancies of which nine resulted in spontaneous abortions and one in neonatal death. At least two of Aveta's children including Hunter have had seizure disorders. Aveta has had premature deliveries.
Aveta first received obstetrical care for Hunter's delivery on January 18, 2008. She was admitted to RUMC for delivery on May 14, 2008. Hunter was delivered on the same day, and he had a complicated post-natal course in the hospital. Aveta was discharged from RUMC on May 18, 2008. Hunter was discharged from RUMC a month later, on June 18, 2008.
Among other allegations, Aveta states that her pregnancy was high-risk, and that the pregnancy was improperly managed. According to Aveta, that improper management resulted in Hunter's injuries. Aveta alleges a derivative injury to herself, because she provides special care to Hunter, and she has added expenses.
On December 29, 2010, the defendant Dr. Poliseno demanded Aveta's medical records for the ten years prior to Hunter's delivery. On January 6, 2010, Dr. Poliseno demanded the records of any and all medical providers that treated Aveta during any and all pregnancies. On March 16, 2011, the plaintiff improperly moved to preclude discovery under the index number 102662/10. That action was consolidated with an earlier action under index number 101945/09 by stipulation on February 1, 2011.
Discussion
This action is founded upon alleged medical malpractice, and the defendant's seek the plaintiff Aveta's prior medical history. The Civil Practice Law and Rules provides that: "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof..." "Upon objection by a person entitled to assert the privilege, privileged material shall not be obtainable." "Unless the patient waives the privilege, a person authorized to practice medicine ... shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." Therefore, despite a policy promoting full disclosure from an individual, without a patient's waiver, specified providers of medical or surgical care may not disclose information that was communicated to that provider and used to treat the individual patient.
The New York Court of Appeals has held that "where the mental or physical condition of a party is in controversy, that party may be required to make available for inspection relevant hospital and medical records. The initial burden of proving that a party's physical condition is in controversy' is on the party seeking the information and it is only after such an evidentiary showing that discovery may proceed under the statute [CPLR § 3124a]." As to the evidence, "an affidavit must be sworn to by a person having knowledge of the facts, an affidavit by an attorney should be disregarded unless he happens to have personal knowledge of the facts." Probative evidence must show that medical records are material and necessary to the action.
Dillenbeck v. Hess, 73 NY2d 278, 286 - 287 [1989]; citing Koump v. Smith, 25 NY2d 287, 300 [1969].
Koump v. Smith, 25 NY2d at 300.
Cardillo v. Hillcrest Gen. Hosp.-G.H.I. Group Health, Inc., 134 AD2d 229, 230 [2d Dept 1987].
Here, the attorney for RUMC affirms that she is fully familiar with the facts and circumstances of this action based upon a review of files. The attorney for Poliseno submits an affirmation based on information and belief founded upon files and records. Likewise, the attorney for Moretti states he is familiar with pleadings and procedures of this action. The request for Aveta's medical records is based upon Aveta's statements during a sworn deposition on July 29, 2010, with which the counsel for RUMC affirms she is fully familiar. During that deposition, Aveta made certain disclosures concerning her past obstetrical history including a report of nine spontaneous abortions and the neonatal death of her infant. Aveta also related a history of gynecological surgery. Additionally, Aveta disclosed her medical history of seizures and respiratory disease and a family history of diabetes. Each of these disclosures may have relevance to high-risk pregnancy. Therefore, counsel RUMC as a demanding party has borne the burden of showing personal knowledge of facts made known at Aveta's deposition.
The plaintiff's Bill of Particulars specifies that the defendants failed to properly treat Aveta's high-risk pregnancy. This resulted in injury to Hunter, and Hunter's injury leads to Aveta's derivative claim. Clearly, Aveta's high-risk pregnancy with Hunter must be evaluated in the context of her own past medical, gynecological, and obstetrical history. A mother's exposure to chemical or pharmaceutical agents while in utero cannot be severed from the course of her neonate. Analogously, a mother's prior medical, gynecological, and obstetrical risks and history cannot be severed from an alleged high-risk pregnancy. It is precisely those risks which may define a heightened risk, along with the course of the pregnancy itself. Therefore, Aveta's prior medical, gynecological and obstetrical history are relevant to her claim of malpractice against the defendants.
In re New York County DES Litigation, 168 AD2d 44, 46 [1st Dept 1991].
Relevance supported by the facts brought forth by the demanding party, when taken together, require the plaintiff to waive her physician-patient privilege and allow discovery of records from her past medical, gynecological, and obstetrical providers.
Hunter's medical records are relevant en toto to this action. Ordinarily, a party suing in a representative or in a derivative capacity is not required to disclose their own medical history. The plaintiff argues that because Aveta is a non-party representative and is only making a derivative claim for Hunter's added expenses, that her medical records are not discoverable because of the physician-patient privilege. Aveta argues that the only exception to this privilege would allow discovery of prenatal care for Hunter, and of her labor and delivery. Merely suing in a representative capacity does not put one's own medical condition in controversy. A non-party witness need not disclose privileged medical information communicated to her physician, but must reveal facts relevant medical incidents or facts concerning herself or her children. A witness at a deposition may refuse to tell her communications to her doctor, although she must disclose matters of fact. A plaintiff suing in a representative capacity is not required to disclose their medical care subsequent to the delivery of a child. Moreover, Aveta is not suing in this derivative action for loss of services, which would have placed her own medical history, as opposed to her gynecological and obstetrical history, in controversy.
Roman v. Turner Colours, Inc., 255 AD2d 571, 572 [2d Dept 1998].
Scipio v. Upsell, 1 AD3d 500 [2d Dept 2003].
Sibley v. Hayes, 126 AD2d 629, 631 [2d Dept 1987].
Williams v. Roosevelt Hosp., 66 NY2d 391, 393 [1985].
Bolos v. Staten Island Hosp., 217 AD2d 643, 643 - 645 [2d Dept 1995].
Teresi v. Grecco, 206 AD2d 517 [2d Dept 1994].
Roman v. Turner Colours, 255 AD2d 571, 572 [2d Dept 1998].
However, Aveta has placed her past medical, gynecological and obstetrical history in controversy by asserting that she had a high-risk pregnancy. Consequently, Aveta's past medical, gynecological and obstetrical records are relevant and a request for them is founded upon facts.
In contrast, there is no relevance, supported by facts, that would support requiring Aveta to disclose postpartum medical, gynecological, or obstetrical treatment or diagnosis.
Accordingly, it is hereby
ORDERED, that the plaintiff Lisa Aveta's motion for a protective order is denied concerning her medical, gynecological and obstetrical history, treatment and diagnosis before the birth of the plaintiff Angel Hunter; and it is further
ORDERED, that Lisa Aveta shall provide to all defendants authorizations to obtain the records of the prior ten years of treatment and diagnosis relevant to medical and gynecological care and treatment; and it is further
ORDERED, that Lisa Aveta shall provide to all defendants authorizations to obtain the records for all of her past obstetrical care; and it is further
ORDERED, that the plaintiff Lisa Aveta's motion for a protective order is granted in so far as the records of her postpartum medical, gynecological and obstetrical care are precluded from discovery; and it is further
ORDERED, that the parties shall return for a conference to DCM Part 3, 130 Stuyvesant Place, Third Floor on Tuesday, August 30, 2011 at 9:30 A.M.
ENTER,
Joseph J. Maltese
Justice of the Supreme Court