Summary
In Carboni the defendants were denied plaintiff's psychiatric records because plaintiff did not seek to recover costs of any medical care, custodial care, rehabilitation services or loss of earnings or other economic loss.
Summary of this case from Klein v. AllianoOpinion
2001-00032
Submitted September 26, 2001.
January 22, 2002.
In an action to recover damages for personal injuries, the defendants Ramamohana R. Kancherla, Diane E. Lake, Tauseef Ahmed, and Karen P. Seiter appeal from so much of an order of the Supreme Court, Westchester County (Coppola, J.), dated November 28, 2000, as granted that branch of the plaintiff's motion which sought a protective order denying their requests for discovery of the psychiatric and psychological records of the plaintiff's decedent, and the plaintiff cross-appeals from so much of the same order as denied that branch of her motion which sought a protective order denying the defendants' requests for collateral source information.
Pilkington Leggett, P.C., White Plains, N.Y. (Steven W. Kraus and Patricia Lacy of counsel), for appellants-respondents.
Walter G. Alton, Jr. Associates, P.C., New York, N.Y., for respondent-appellant.
Before: DAVID S. RITTER, ACTING P.J., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from, and that branch of the plaintiff's motion which was for a protective order denying the defendants' requests for collateral source records is granted; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
It is well settled that a party waives the physician-patient privilege by affirmatively placing his or her physical or mental condition in issue (see, Cynthia B. v. New Rochelle Hosp. Med. Center, 60 N.Y.2d 452, 456-457; Prink v. Rockefeller Center, 48 N.Y.2d 309; Koump v. Smith, 25 N.Y.2d 287; Zimmer v. Cathedral School of St. Mary and St. Paul, 204 A.D.2d 538, 539). However, a party does not waive the privilege with respect to unrelated illnesses or treatments (see, Sadicario v. Stylebuilt Accessories, 250 A.D.2d 830; Zappi v. Pedigree Ski Shop, 244 A.D.2d 331). In the instant case, since the plaintiff withdrew claims based on the decedent's psychiatric and psychological injuries, the Supreme Court properly determined that the decedent's psychiatric and psychological records were not subject to disclosure (see, Kohn v. Fisch, 262 A.D.2d 535; Strong v. Brookhaven Mem. Hosp. Med. Ctr., 240 A.D.2d 726).
However, the Supreme Court also should have granted the plaintiff a protective order denying the defendants' requests for collateral source information as the plaintiff has not sought to recover the costs of any medical care, custodial care, or rehabilitation services, loss of earnings or other economic loss (see, CPLR 4545[a]).
RITTER, ACTING P.J., FEUERSTEIN, GOLDSTEIN, FRIEDMANN and CRANE, JJ., concur.