In a 3-2 Decision, a panel of Second Department Justices held that a defendant’s medical records were not subject to discovery. In the case of Peterson v. Estate of John Rozansky, the panel of Justices upheld a trial court’s decision to grant a protective order in regards to the deceased defendant’s medical records. The case was initiated after the plaintiff, who was working at a toll plaza for the Queens Midtown Tunnel, was struck by an oncoming vehicle. The accident occurred in 2004, and in 2005, the plaintiff brought suit against the driver of the vehicle, John Rozansky.
In 2006, the defendant Rozansky sent a letter to the plaintiff from his social worker which stated that he was suffering from dementia and was exhibiting anxiety and depression. Although the plaintiff asserted that the letter was sent in order to avoid him appearing for a deposition, they did not move to compel his deposition. In 2009, Rozansky passed away. Alzheimer’s and dementia were listed among the causes of death. Following his death, Rozansky’s estate was substituted as the defendant.
The case proceeded and in December 2007, the plaintiff filed a note of issue. They also filed a note of issue in May of 2011 and January of 2014. Although the plaintiff filed the three notes of issue, in March 2015, they served Rozannsky’s adult children with a demand for them to testify and to bring copies of Rozansky’s medical records. The defendants moved pursuant to CPLR 3103(a) for a protective order with respect to the medical records. The Supreme Court granted the motion for the protective order.
The majority decision of the Second Department panel began with a review of CPLR 3121(a) which deals with requests for medical records. Under CPLR 3121(a), a party must first demonstrate that the defendant’s physical or mental condition is “in controversy” in order to obtain said records. Even in cases where that standard is met, the records may still be subject to a privilege, and therefore, not subject to discovery. The Court went on to describe the physician-patient privilege and how it is waived when a litigant affirmatively places his or her mental or physical condition in issue. With that being said, the case of Dillenbeck v. Hess held that a party does not waive the privilege whenever it is forced to defend an action in which his or her condition is in controversy. Instead, in order for a defendant to effect a waiver, they must affirmatively assert the condition by way of counterclaim or to excuse the conduct complained of by the plaintiff.
In the case at bar, the Second Department found that the plaintiff failed to meet the initial burden of proving that the defendant’s condition was “in controversy” at the time of the accident. The decision elaborated by stating that Rozansky did not place his mental condition at the time of the accident in question. He did not state that his mental condition excused his actions on that day. Instead, he placed his mental condition in September 2006 at issue by refusing to appear at a deposition. At that time, the plaintiffs could have moved to compel the deposition and challenge any diagnosis. Furthermore, even assuming they did meet the initial burden, the Court stated that the physician-patient privilege would apply and that there was no valid waiver of the privilege.
Two Justices on the panel dissented. The Justices opined that the Supreme Court should have directed the disclosure of the medical records. They first noted that CPLR 3101(a) is to be liberally construed. Under their analysis of the CPLR section the medical records would be discoverable regardless if they were admissible under the physician-patient privilege. In applying the analysis to the case at bar, the two Justices opined that Rozansky placed his mental and/or physical health in controversy by refusing to fulfill his deposition obligations. Furthermore, they stated that had the condition been such an issue at the time of the deposition, then it would be reasonable to assess whether it was a condition at the time of the accident. In coming to their conclusion the Justices relied on the case of Appler v. Riverview Obstetrics & Gynecology, wherein a defendant’s medical records were found to be in controversy after a refusal to be deposed. Under the decision of Appler and a liberal construction of the CPLR section, the Justices believed that the motion for a protective order should have been denied.
To read the full copy of the decision click here. Seeing as the decision was a 3-2 split, it still waits to be seen whether the case will be appealed to the New York State Court of Appeals.
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