Opinion
Index No.: 805273/2014
06-19-2019
DAVID KUKLA, Plaintiff, v. DR. PHILIP D. BAMBERGER, ROOSEVELT HOSPITAL, ABC CORP., XYZ CORP., JOHN DOE, M.D. (I through V), JANE DOE, M.D. (I through V), fictitious defendants, Defendants.
NYSCEF DOC. NO. 79
DECISION & ORDER
Motion Seq. 001
Hon. Martin Shulman
In this medical malpractice action, plaintiff, David Kukla, moves for a protective order pursuant to CPLR §3103(a) denying defendants' January 18, 2019 request for fifteen (15) additional HIPAA compliant medical and dental authorization forms, and precluding defendant from serving any further discovery demands. Plaintiff also moves for leave of court to immediately file a note of issue. Defendants oppose the motion and cross-move pursuant to CPLR §3126 to dismiss this action with prejudice for plaintiff's willful failure to respond to multiple court orders and discovery demands, or, alternatively, pursuant to CPLR 3124 compelling plaintiff to provide all outstanding discovery by a date certain. Plaintiff opposes the cross-motion. Protective Order
CPLR §3103(a) states:
Prevention of abuse. The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.Trial courts generally have broad power to regulate discovery to prevent abuse and a protective order is necessary and proper when the disclosure process is used to harass a party. Jones v Maples 257 AD2d 53, 56-57 (1st Dept 1999); Seaman v Wyckoff Heights Med. Ctr., Inc., 25 AD3d 598, 599 (2d Dept), lv denied 7 NY3d 864 (2006). The moving party bears the burden of persuasion in seeking a protective order.
By order dated August 7, 2018, this court directed plaintiff to provide defendants with certain HIPAA and Arons authorization forms. Plaintiff provided these authorizations but defendants claimed they were deficient and requested unrestricted authorizations. A further court order dated October 30, 2018 required plaintiff to provide unrestricted authorizations for the providers set forth in the court's August 7, 2018 order. Plaintiff's counsel ultimately sent these unrestricted authorizations to defense counsel by certified mail on December 31, 2018 (Exhibit G to motion). However, defendants then sent two more letters on January 18, 2019, collectively demanding the fifteen additional authorizations which are the subject of plaintiff's motion. Plaintiff claims that these additional authorizations are for doctors who never treated him, or for doctors who never treated him regarding his tongue injury which is at issue in this action.
Defendants contend that these additional requests are relevant because the bills of particulars claim a permanent ongoing injury. Therefore, defendants claim they are "entitled to any additional medical records that are generated in order to gauge the significance of his ongoing injury." Plaintiff's supporting affidavit states that the health care providers named in defendants' January 18, 2019 letter never treated him for any issues with his tongue and that he has provided authorizations for all relevant providers. Indeed, plaintiff's own internet search revealed that certain providers' specialties were clearly unrelated to his tongue injury (i.e., a gastroenterologist, an infectious disease physician and orthopedists). Given the foregoing, which defendants' opposition fails to address, it is apparent that defendants broadly interpret the circumstances under which a plaintiff in a medical malpractice action waives the physician-patient privilege.
As set forth in Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573, 574 (1st Dept 2014), "waiver of [the] physician-patient privilege is limited in scope to 'those conditions that [plaintiff] affirmatively placed in controversy' (citation omitted and bracketed matter added)". See also Brito v Gomez, 168 AD3d 1, 7 (1st Dept 2018) (quoting Diako v Yunga, 148 AD3d 438, 438 [1st Dept 2017]). The First Department has also clearly stated its disagreement with the Second Department's expansive view of waiver of the physician-patient privilege (see Brito v Gomez at 7-8). Here, because plaintiff's alleged injuries all relate specifically to his tongue, the "conditions . . . affirmatively placed in controversy" should be limited to conditions reasonably involving his tongue.
In this case, defendants have requested the 15 additional authorizations from plaintiff for doctors who, according to plaintiff's affidavit, either never saw plaintiff or had nothing to do with treating his tongue injury. While under CPLR §3101(a), a doctor who may not have treated the tongue, but who did treat a closely related condition impacting tongue function (e.g. a dentist), may have information relevant or necessary to trial, this does not apply to these 15 authorizations. Plaintiff's descriptions of the doctors named in these additional requests (see plaintiff's affidavit dated February 24, 2019, pages 4 and 5) establish that none of them are involved in conditions that plaintiff affirmatively placed in controversy. Defendants have, after receiving plaintiff's motion and affidavit, failed to demonstrate the relevancy of the additional authorizations. Accordingly, defendants fail to establish that plaintiff waived the physician-patient privilege.
Here, plaintiff has effectively demonstrated that a protective order is necessary to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice". See CPLR §3103(a). For the foregoing reasons, the branch of plaintiff's motion seeking a protective order is granted. As to the remaining relief plaintiff seeks, the branch of the motion seeking to preclude defendants from serving any further demands is denied. Plaintiff may file the note of issue as directed below. Cross-Motion
Defendants' cross-motion requests an order pursuant to CPLR §3126 dismissing this action due to plaintiff's failure to respond to multiple court orders or, alternatively, pursuant to CPLR 3124 compelling plaintiff to provide outstanding discovery by a date certain. The discovery claimed to be outstanding consists of authorizations identified in the August 7, 2018 and October 30, 2018 conference orders and the additional 15 authorizations requested in defense counsel's letter dated January 18, 2019. Given that this court granted plaintiff's request for a protective order with respect to the additional 15 authorizations, the cross-motion is denied as moot as to these items.
With respect to the remaining demands for authorizations, plaintiff's counsel maintains that he provided 10 specific and unrestricted authorizations to defense counsel on December 31, 2018. Plaintiff's counsel notes that a paralegal in defense counsel's office received and signed for them on January 3, 2019 (exhibit B of plaintiff's affidavit in opposition to defendants' cross-motion).
Despite the fact that plaintiff's motion includes a copy of counsel's December 31, 2018 correspondence and duly executed authorizations, defendants still maintain in their cross-motion and opposition that these items remain outstanding. In response, plaintiff affirmatively refutes that the outstanding discovery was provided and received, albeit untimely.
Plaintiff's counsel does not address his non-compliance with the court orders. Despite the fact that the October 30, 2018 conference order required plaintiff to provide unrestricted authorizations within 30 days, he concludes that his response was timely because he sent it within the 14 day period specified in defense counsel's December 19, 2018 letter. He correctly notes that the 15 additional authorizations demanded in January 2019 were not the subject of any court orders.
Although plaintiff's response was untimely, such conduct does not rise to the level of being willful or contumacious. Accordingly, the branch of defendants' cross-motion seeking dismissal of the complaint is denied, as is the request for alternative relief, which is moot.
For the foregoing reasons, it is hereby
ORDERED that plaintiff's motion is granted to the extent that plaintiff is entitled to a protective order as set forth above and may file his note of issue, and the motion is otherwise denied; and it is further
ORDERED that defendants' cross-motion is denied in its entirety; and it is further
ORDERED that plaintiff shall file the note of issue and certificate of readiness on or before July 26, 2019.
Counsel for the parties are directed to appear for a final settlement conference on July 30, 2019 at 9:30 a.m., at Part 1 MMSP, 60 Centre St., Room 325, New York, NY. In the event the action cannot be settled, counsel shall be prepared on that date to stipulate to a firm trial date in Part 40 TR. Dated: New York, New York
June 19, 2019
/s/_________
Hon. Martin Shulman, J.S.C.