Opinion
INDEX NO.: 602993/2015
08-22-2017
ELLEN MINA & JOSEPH MINA Plaintiffs, v. STEPHEN J. O'BRIEN, M.D., STEPHEN J. O'BRIEN, M.D., PLLC. & HOSPITAL FOR SPECIAL SURGERY, Defendants.
PLAINTIFF'S COUNSEL: Schwartz Goldstone & Campisi, LLP By: David A. Kates, Esq. 90 Broad Street, Suite 403 New York, NY 10004 DEFENDANT'S COUNSEL: Bartlett McDonough & Monaghan, LLP By: Michele L. McEnroe, Esq. 170 Old Country Road Mineola, NY 11501
PUBLISH
NYSCEF DOC. NO. 34
SHORT FORM ORDER
PRESENT: HON. WILLIAM G. FORD JUSTICE SUPREME COURT Motion Submit Date: 03/09/17
Motion Seq #: 001 Mot D PLAINTIFF'S COUNSEL:
Schwartz Goldstone & Campisi, LLP
By: David A. Kates, Esq.
90 Broad Street, Suite 403
New York, NY 10004 DEFENDANT'S COUNSEL:
Bartlett McDonough & Monaghan, LLP
By: Michele L. McEnroe, Esq.
170 Old Country Road
Mineola, NY 11501
The Court has considered the following in reaching a determination on the pending motion by defendant seeking an order pursuant to CPLR 3124 to compel production of authorizations for the production of certain medical records of the plaintiff; or in the alternative to preclude plaintiff from offering evidence at trial:
1. Defendant's Notice of Motion and Affirmation in Support dated January 4 ,2017; and supporting papers;
2. Plaintiff's Affirmation in Opposition dated February 17, 2017
3. Defendant's Reply Affirmation in Further Support dated February 22, 2017; it is
ORDERED that defendant's motion seeking issuance of an order compelling plaintiff to produce authorizations for the production of gynecological, gastroenterological and psychiatric/psychological medical records, or in the alternative precluding plaintiff's offering of evidence at trial should plaintiff fail to comply, pursuant to CPLR 3214 is GRANTED IN PART AND DENIED IN PART as discussed below.
Plaintiffs Ellen and Joseph Mina brought this medical malpractice negligence action against defendants Stephen J. O'Brien, M.D., his practice Stephen J. O'Brien, M.D., PLLC., and the Hospital for Special Surgery. Mina alleges that Dr. O'Brien negligently performed a right knee arthroscopy resulting in alleged personal injuries and damages. More specifically, plaintiff alleges that she suffers from complex regional pain syndrome ("CPRS") and/or regional sympathetic dystrophy ("RSD"), and that defendant failed to correctly diagnose this condition, or alternatively, failed to properly utilize anesthesia during her knee surgery, exacerbating her condition.
The Mina's filed their summons and complaint commencing this action on March 25, 2015. Issue was joined with defendants' service of their answer on May 12, 2015. Plaintiff thereafter amplified the pleadings serving a Verified Bill of Particulars on July 2, 2015.
Pretrial discovery is ongoing in this action, with the parties most recently appearing before this Court's compliance conference calendar on July 11, 2017. Defendants sought and were granted leave to make the instant application at a pre-motion conference held before the undersigned on December 13, 2016.
Defendants have demanded that plaintiffs supply them with authorizations to be processed for the provision of Mina's gynecological, gastroenterological, psychological and dermatological medical records. Defendants make this discovery demand on the basis that Mina in her verified bill of particulars alleges that she has suffered permanent injuries including dermatological changes including irregular fibrotic scarring of her skin; and complaints impacting her ability to ambulate, stand, climb stairs, perform routine housework, and engage in sports activities, exercise or sleep. Defendants further seek production of authorizations for medical records from any and all institutional care providers such as urgent care, radiological imaging centers, and laboratories, in addition to pharmacy records. Lastly, defendant seek production of authorizations for records for any and all surgical procedures plaintiff has undergone involving the use of anesthesia. That request is not limited by date, i.e. does not specify whether it seeks records for prior or subsequent surgeries, nor is it limited to a specific body part or region of Mina's body.
Defendants claim that despite making several follow up written requests in good faith for production of plaintiffs' authorization, they are still outstanding and have not yet been provided. Plaintiff's made written objection and provided some authorizations, which to the extent they are not involved in the present demands, are not delineated here. In opposition to the instant application, plaintiff has withdrawn opposition and objection to the provision of authorizations to defendants for her dermatological demands and thus that aspect of defendants' motion is hereby deemed moot.
Arguing in support of their motion, defendants essentially argue that plaintiff's gynecological and gastroenterological records are relevant and material to defendants' ability to defend plaintiff's claims to the extent that they may have an impact on or ability to interfere with plaintiff's ability to walk, sit, stand, exercise, or sleep, etc. Further, defendants urge the Court to recognize that with Mina's allegations of medical malpractice, she has waived the physician-patient privilege and put the condition of her body into issue. Thus, both prior and subsequent surgeries involving the use of anesthesia are relevant, since part of plaintiff's claim is that defendants failed to appreciate or apprehend that she presented as a patient with CPRS and/or RSD and thus negligently administered anesthesia attendant to her right knee arthroscopy. Moreover, defendants reason that Mina's psychological/psychiatric records are material and relevant here since plaintiffs have made a loss of enjoyment of life claim and thus put into issue her mental health, status or condition.
In opposition, plaintiff contends that defendants' demands are not sufficiently narrow, specified or particularized and therefore go beyond the bounds of what is normally considered to be material or relevant or to lead to discoverable evidence. Thus, Mina essentially argues that defendants' requests concerning surgical records unlimited in scope or time are palpably improper, to the extent that they do not involve her lower extremities which she perceives to be in issue in this litigation. Lastly, plaintiff emphasizes that defendants have failed to articulate a good faith objective basis to believe that her gynecological or gastroenterological records are relevant to plaintiff's claims and thus constitutes a patent speculative fishing expedition.
CPLR 3101(a) broadly mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action." This provision is liberally interpreted in favor of disclosure (see Kavanagh v . Ogden Allied Maintenance Corp., 92 NY2d 952, 954; Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406; Matter of Skolinsky , 70 AD3d 845, 892 NYS2d 913; Riverside Capital Advisors , Inc. v. First Secured Capital Corp., 292 AD2d 515, 739 NYS2d 281; Ural v Encompass Ins. Co. of Am., 97 AD3d 562, 566, 948 NYS2d 621, 625-26 [2d Dept 2012]).
The test to be employed by the Supreme Court when determining discovery issues is one based on usefulness and reason (see Andon v . 302-304 Mott St. Assoc., 94 NY2d 740, 746, 709 NYS2d 873). However, discovery demands which are unduly burdensome, lack specificity, or seek privileged and/or irrelevant information are improper and will be vacated (see Board of Mgrs . of the Park Regent Condominium v. Park Regent Assoc., 78 AD3d 752, 753, 910 NYS2d 654; Bell v. Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621, 804 NYS2d 362; Lopez v. Huntington Autohaus , 150 AD2d 351, 352, 540 NYS2d 874; H.R. Prince , Inc. v Elite Envtl. Sys., Inc., 107 AD3d 850, 850, 968 NYS2d 122, 123-24 [2d Dept 2013]).
The words 'material and necessary' as used in section 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.' " Discovery is not unlimited, however, and the supervision of discovery is generally left to the broad discretion of the trial court. At the same time, a party is **108 "not entitled to unlimited, uncontrolled, unfettered disclosure" ( Quinones v 9 E. 69th St., LLC , 132 AD3d 750, 750, 18 NYS3d 106, 107-08 [2d Dept 2015]).
Accordingly, the supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed" ( Gould v Decolator , 131 AD3d 445, 446-47, 15 NYS3d 138, 140 [2d Dept 2015][internal citations omitted]).
It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" ( Crazytown Furniture v. Brooklyn Union Gas Co., 150 AD2d 420, 421, 541 NYS2d 30; see Seigel, N.Y. Prac. § 345; CPLR 3101[a]; Herbst v. Bruhn , 106 AD2d 546, 483 NYS2d 363; Andon v. 302-304 Mott St. Assocs., 94 NY2d 740, 746, 709 NYS2d 873; Palermo Mason Constr. v. AARK Holding Corp., 300 AD2d 460, 751 NYS2d 599; Vyas v Campbell , 4 AD3d 417, 418, 771 NYS2d 375, 376 [2d Dept 2004]). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" ( Bell supra., 22 AD3d at 621).
A motion to compel discovery under CPLR 3124 should be denied where the document demands are overly broad, vexatious, and tend to confuse, rather than sharpen, the central issue of negligence ( Brandes v N. Shore Univ. Hosp., 1 AD3d 550, 551, 767 NYS2d 666, 667 [2d Dept 2003]).
A party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue ( Vodoff v Mehmood , 92 AD3d 773, 773, 938 NYS2d 472 [2d Dept 2012]).
Well established precedent in the Second Department instructs that where plaintiff affirmatively place her entire medical condition in controversy with the broad allegations of physical injury and mental anguish contained as plead in the bill of particulars ( Diamond v Ross Orthopedic Group , P.C., 41 AD3d 768, 768-69, 839 NYS2d 211, 212 [2d Dept 2007]). Furthermore, the nature and severity of the plaintiff's previous medical condition may be material and necessary to the issue of damages, if any, recoverable for a claimed loss of enjoyment of life due to the broad pleading and allegation of various physical injuries and ailments ( Abdalla v Mazl Taxi , Inc., 66 AD3d 803, 804, 887 NYS2d 250, 251 [2d Dept 2009]; Greco v Wellington Leasing Ltd. Partnership , 144 AD3d 981, 982, 43 NYS3d 64, 66 [2d Dept 2016]). However, a party may avoid the disclosure of medical records in such circumstances by abandoning claims of psychological or psychiatric injury, the burden of establishing that there has been no waiver of the privilege is on the party asserting the privilege ( Corbey v Allam , 58 AD3d 667, 668, 871 NYS2d 712, 713 [2d Dept 2009]).
Having reviewed the parties' submissions, this Court finds and determines the following:
I. Plaintiff's Psychiatric/Psychological Records
Defendants correctly note that since plaintiffs have made a claim for loss of enjoyment of life, Mina's mental status, condition and health are in issue in this litigation. Thus, Mina's psychological and psychiatric records are material and relevant to defendants' anticipated defense of the action (see e.g. and compare Moreira v M .K. Travel and Transp., Inc., 106 AD3d 965, 967, 966 NYS2d 150, 151 [2d Dept 2013][affirming trial court's granting of defendant's motion to compel disclosure of plaintiff's mental health treatment records where plaintiff sought damages for anxiety, mental anguish, and loss of enjoyment of life, her mental health records were determined material and necessary for an accurate assessment of her damages]; with Tomei v Town of Riverhead , 147 AD3d 1102, 1102, 46 NYS3d 909 [2d Dept 2017] [motion to compel the plaintiff to provide an authorization for the release of his treatment records from a rehabilitation facility properly denied where plaintiff withdrew claim to recover damages for injuries related to that treatment]; Quinones v 9 E. 69th St., LLC , 132 AD3d 750, 751, 18 NYS3d 106, 108 [2d Dept 2015] [where plaintiff does not seek damages for emotional or psychological injury or does not expressly seek damages for loss of enjoyment of life disclosure of psychological or mental health records is unwarranted as plaintiff does not place his mental condition in issue]; accord Goldberg v Fenig , 300 AD2d 439, 440, 751 NYS2d 546, 547 [2d Dept 2002]).
Here, since plaintiff continues to seek recovery for psychological harm arising from the alleged medical malpractice and considering that she has not withdrawn the corresponding claim for loss of enjoyment of life at this juncture, plaintiff's psychological condition remains in issue for purposes of this matter.
Accordingly, defendants' motion to compel plaintiff to produce an authorization for plaintiff's psychological or psychiatric treatment pursuant to CPLR 3124 is hereby GRANTED; and thus it is
ORDERED that plaintiff shall provide defendants with an authorization for the processing and provision of her psychiatric and psychological treatment records for harms arising from the alleged medical malpractice plead in this matter on or before October 25, 2017.
II. Plaintiff's Gynecological & Gastroenterological Records
For different reasons however, defendants' requests that plaintiff be compelled to produce authorizations for her gynecological and gastroenterological records are hereby DENIED, without prejudice with leave to renew upon the submission of proper papers.
Here, defendants have made no effort at showing that plaintiff has alleged any particularized injury showing a causal nexus between alleged gynecological or gastroenterological issues whatsoever, much less that any such issues, should they exist, have an impact or causative or contributory effect on the alleged injuries plead in the complaint and amplified in the bill of particulars. Instead rather, defendants provide to this Court mere speculation that either or both alleged conditions could be alternative sources or causes for plaintiff's alleged harm. This does not meet the standard of materiality or relevancy set forth in the CPLR and does presents as a pure fishing expedition founded on uncorroborated conclusion and speculation ( Accent Collections , Inc. v Cappelli Enterprises , Inc., 84 AD3d 1283, 1283, 924 NYS2d 545, 547 [2d Dept 2011][motion to compel responses to discovery is properly denied where the demands seek information which is irrelevant, overly broad, or burdensome]).
Thus, defendants discovery demands in their present unsubstantiated and vague form would only serve to harass, annoy and potentially embarrass plaintiff where no link between the requested records and the underlying conditions and the harms plead in this litigation has been established.
Accordingly, it is
ORDERED that that branch of defendants' motion to compel plaintiff to produce authorizations for the provision of her gynecological and gastroenterological records pursuant to CPLR 3124 is hereby DENIED without prejudice with leave to renew upon the submission of proper papers.
III. Plaintiff's Prior Surgical Records
The prevailing wisdom within the Second Department concerning the disclosure of plaintiff's prior medical history in a action seeking recovery of damages for personal injuries as calling for plaintiff to comply with defendant's discovery demands seeking production of prior medical history where the nature and severity of prior medical conditions and injuries may have an impact upon the amount of plaintiff's recoverable damages. Thus plaintiff may be compelled to provide records to the extent they are material, necessary and relevant to damages ( Amoroso v City of New York , 66 AD3d 618, 887 NYS2d 163 [2d Dept 2009]). Under the facts and circumstances presented here, defendant has adequately shown that given plaintiff's theory that her preexisting CPRS or RSD conditions and their interplay with anesthesia administered part and parcel with surgery, plaintiff's prior and subsequent submission to surgical interventions involving the use of anesthesia are material and relevant to defendant's defense and to the scope and recoverability by plaintiff of damages in this litigation.
That said, plaintiff is also correct that defendants' are only entitled to discovery sufficiently and narrowly tailed in scope as to be reasonable. Thus, to the extent that defendants' present requests are unlimited in timeframe and unspecified as to body region, area or body part, this Court finds and determines that that branch of defendant's motion to compel plaintiff to produce authorizations for any and all surgeries involving the use of anesthesia is hereby GRANTED IN PART AND DENIED IN PART as follows:
ORDERED that defendants' motion to compel plaintiff to produce authorizations for any and all surgical records involving the use of anesthesia pursuant to CPLR 3124 is hereby reformed to call for the production of any and all such records within 10 years of the subject right knee arthroscopy implicated by plaintiff's complaint; and it is further
ORDERED that counsel for the defendants is hereby directed to serve a copy of this decision and order on plaintiff's counsel with notice of entry on or before September 25, 2017.
The foregoing constitutes the decision and order of this Court. Dated: August 22, 2017
Riverhead, New York
/s/ _________
WILLIAM G. FORD, J.S.C.