The Lee defendants moved for an order compelling plaintiff, inter alia, to furnish authorizations that were "without date restrictions," and Kaleida cross-moved for, inter alia, that same relief. We conclude that Supreme Court abused its discretion in granting the motion and cross motion without first conducting an in camera review of the records of the medical providers in question that were outside the time periods specified in the authorizations to determine whether the records are material and related to any physical or mental condition placed in issue by plaintiffs. "In bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy" ( Mayer v Cusyck, 284 AD2d 937, 938). Here, all of plaintiffs' claims of injury and damages arise from the alleged undiagnosed cancer and its sequelae.
After plaintiffs refused to comply fully with defendants' disclosure requests, defendants moved for, inter alia, an order compelling plaintiffs to provide medical authorizations in compliance with the Health Insurance Portability and Accountability Act of 1996 ( 42 USC Β§ 1320d et seq.), permitting the release of plaintiffs medical records from various providers. In view of the injuries alleged by plaintiffs, we conclude that Supreme Court properly exercised its discretion in directing plaintiffs to submit to the court for in camera review a certified complete copy of plaintiffs records from Sadiqa Karim, M.D., Quest Diagnostic and X-Cell Laboratories of WNY ( see Tabone v Lee, 59 AD3d 1021, 1022; Mayer v Cusyck, 284 AD2d 937; Carter v Fantauzzo, 256 AD2d 1189, 1190). "In bringing the action, plaintiff waived the physician[-]patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy" ( Mayer, 284 AD2d at 938).
We agree with plaintiff that Supreme Court abused its discretion in granting defendants' motion to compel plaintiff to provide the authorizations ( see MS Partnership v Wal-Mart Stores, 273 AD2d 858). It is well settled that, although "[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" ( Carter v Fantauzzo, 256 AD2d 1189, 1190; see Mayer v Cusyck, 284 AD2d 937, 938), the waiver of that privilege "`does not permit discovery of information involving unrelated illnesses and treatments'" ( Carter, 256 AD2d at 1190). "The determinative factor is whether the records sought to be discovered are `material and necessary' in defense of the action" ( Wachtman v Trocaire Coll., 143 AD2d 527, 528, quoting Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 457; see CPLR 3101 [a]), or whether the records "may contain information reasonably calculated to lead to relevant evidence" ( Zydel v Manges, 83 AD2d 987).
It is well settled that although "[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" (Carter v Fantauzzo, 256 AD2d 1189, 1190 [4th Dept 1998]; Mayer v Cusyck, 284 AD2d 937, 938 [4th Dept 2001 ]), the waiver of that privilege "'does not permit discovery of information . . . unrelated to illnesses and treatments [in issue]'" (bracketed matter added) (Carter, 256 AD2d at 1190). "The determinative factor is whether the records sought to be discovered are 'material and necessary' in defense of the action" (Wachtman v Trocaire Coll., 143 AD2d 527, 528 [4th Dept 1988], quoting Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 457 [1983]; see CPLR Β§3101[a]), or whether the records "may contain information reasonably calculated to lead to relevant evidence" (Zydel v Manges, 83 AD2d 987 [4th Dept 1981]).
Contrary to defendant's contention, the allegations in plaintiff's bill of particulars are not so broad " βthat they place plaintiff's entire medical history in controversyβ " ( Reading v. Fabiano [appeal No. 2], 126 A.D.3d 1523, 1524, 6 N.Y.S.3d 360 [4th Dept. 2015] ; seeSchlau v. City of Buffalo, 125 A.D.3d 1546, 1547β1548, 4 N.Y.S.3d 450 [4th Dept. 2015] ; Tabone v. Lee, 59 A.D.3d 1021, 1022, 873 N.Y.S.2d 401 [4th Dept. 2009] ). Plaintiff, in commencing a personal injury action, waived "the physician/patient privilege only with respect to the physical and mental conditions [that he] affirmatively placed in controversy" ( Mayer v. Cusyck, 284 A.D.2d 937, 937, 725 N.Y.S.2d 782 [4th Dept. 2001] ), and not with respect "to information involving unrelated illnesses and treatments" ( Schlau, 125 A.D.3d at 1548, 4 N.Y.S.3d 450 [internal quotation marks omitted] ).
We dismiss the appeal from the βamended memorandum decision and orderβ in appeal No. 3, which did not effect a βmaterial or substantial changeβ (Matter of Kolasz v. Levitt, 63 A.D.2d 777, 779, 404 N.Y.S.2d 914 ). We affirm the order in appeal No. 2. βIn bringing the action, plaintiff waived the physician/patient privilege only with respect to the physical and mental conditions affirmatively placed in controversyβ (Mayer v. Cusyck, 284 A.D.2d 937, 938, 725 N.Y.S.2d 782 ). Indeed, that waiver β βdoes not permit wholesale discovery of information regarding [plaintiff's] physical and mental conditionβ β (Carter v. Fantauzzo, 256 A.D.2d 1189, 1190, 684 N.Y.S.2d 384 ). Contrary to defendants' contention, the allegations in the bill of particulars that plaintiff sustained βserious and permanent injuries, including: toxic keratitis ; bilateral corneal abrasions ; severe bilateral photophobia; impaired vision; decrease in vision; need for corneal transplants ; loss of enjoyment of life; disability; and pain and sufferingβ βdo not constitute such βbroad allegations of injuryβ that they place plaintiff's entire medical history in controversyβ (Tabone v. Lee, 59 A.D.3d 1021, 1022, 873 N.Y.S.2d 401 ; cf. Geraci v. National Fuel Gas Distrib. Corp., 255 A.D.2d 945, 946, 680 N.Y.S.2d 776 ). The court properly conducted an in camera review to redact irrelevant information (see generally Nichter v. Erie County Med. Ctr. Corp., 93 A.D.3d 1337, 1338, 940 N.Y.S.2d 509
We conclude, based upon the record before us, that the records sought are βmaterial and necessaryβ to the defense of this action (CPLR 3101[a] ), inasmuch as they may contain information βreasonably calculated to lead to relevant evidenceβ ( Grieco v. Kaleida Health [Appeal No. 2], 79 A.D.3d 1764, 1765, 914 N.Y.S.2d 848). Indeed, the records are likely to include prior medical conditions that may be relevant to the defense of this action. We further conclude, however, that the records should not be released to defendants until the court has conducted an in camera review thereof, so that irrelevant information is redacted ( see Tirado v. Koritz, 77 A.D.3d 1368, 1369, 908 N.Y.S.2d 793; see generally Tabone v. Lee, 59 A.D.3d 1021, 1022, 873 N.Y.S.2d 401; Mayer v. Cusyck, 284 A.D.2d 937, 938, 725 N.Y.S.2d 782). We therefore modify the order accordingly.
We further conclude, however, that Supreme Court erred in directing plaintiff to provide an authorization permitting the release of those records to defendants. Rather, they should be reviewed by Supreme Court in camera so that irrelevant information is not disclosed to defendants ( see Tirado v Koritz, 77 AD3d 1368, 1369; see generally Tabone v Lee, 59 AD3d 1021, 1022; Mayer v Cusyck, 284 AD2d 937). We therefore modify the order accordingly.
{ΒΆ 11} Other states have also determined that a trial court must conduct an in camera review of medical records before granting a party access to them.Cardenas v. Jerath (Colo. 2008), 180 P.3d 415; Barker v. Barker (Fla.App. 2005), 909 So.2d 333, 338; Baptist Mem. Hosp.-Union Cty. v. Johnson (Miss. 2000), 754 So.2d 1165; Pina v. Espinoza (2001), 130 N.M. 661, 29 P.3d 1062; Mayer v. Cusyck (2001), 284 A.D.2d 937, 725 N.Y.S.2d 782; Stewart v. Crouch (Sept. 25, 1996), Tex.App. No. 04-96-00165-CV, 1996 WL 543272. II.
"[A]lthough a plaintiff who commences a personal injury action has waived the physicianpatient privilege to the extent that his [or her] physical or mental condition is affirmatively placed in controversy . . ., the waiver of that privilege does not permit discovery of information involving unrelated illnesses and treatments" (Bozek v Derkatz, 55 A.D.3d 1311, 1312 [4th Dept 2008] [internal quotation marks omitted]; see Barnes v Habuda, 118 A.D.3d 1443, 1444 [4th Dept 2014]; Felix v Lawrence Hosp. Ctr., 100 A.D.3d 470, 471 [1st Dept 2012]; Elmore v 2720 Concourse Assoc., L.P., 50 A.D.3d 493 [1st Dept 2008]). Here, however, the defendants established, with a physician's affirmation, that the plaintiff's treatments with cardiologists, pulmonologists, internists, and other treating facilities were indeed "related to [the] physical or mental conditions affirmatively placed in controversy by" the plaintiff (Mayer v Cusyck, 284 A.D.2d 937, 938 [4th Dept 2001]), specifically, the vision loss that the plaintiff asserted was caused by the defendants. Thus, the records that the defendants seek here are relevant "to the mental and physical conditions that plaintiffs placed in controversy" (Shamicka R. v City of New York, 117 A.D.3d 574, 575 [1st Dept 2014]), and "[a] defendant is entitled to discovery to determine the extent, if any, that plaintiff's claimed injuries and damages are attributable" to causes other than the one at issue here (McGlone v Port Auth. of N.Y. &N.J., 90A.D.3d 479, 480 [1st Dept 2011] quoting Rega v Avon Prods., Inc., 49 A.D.3d 329, 330 [1st Dept 2008]).