Opinion
July 25, 1994
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is affirmed, with costs.
This medical malpractice action was commenced on behalf of the infant plaintiff by his parents, Anne Marie and Agostino Teresi. Mr. and Mrs. Teresi also asserted a derivative cause of action in their individual capacities to recover damages for loss of services and medical expenses. In their bill of particulars, the plaintiffs alleged that the defendants were negligent, inter alia, in failing to note Mrs. Teresi's medical history. The defendants sought to compel Mrs. Teresi to provide authorizations for release of her obstetrical records for pregnancies subsequent to the birth of the infant plaintiff. The Supreme Court denied the defendants' motion, finding that the records were protected by the physician-patient privilege. We affirm.
A plaintiff who sues in a representative capacity as the mother of an infant and alleges in the bill of particulars a failure to ascertain and evaluate her medical history does not waive her physician-patient privilege (see, Sibley v. Hayes 73 Corp., 126 A.D.2d 629; Scharlack v. Richmond Mem. Hosp., 102 A.D.2d 886; Hughson v. St. Francis Hosp., 93 A.D.2d 491). The fact that Mrs. Teresi has also asserted a derivative cause of action in her individual capacity together with her husband does not compel a different conclusion (see, Scalone v. Phelps Mem. Hosp. Ctr., 184 A.D.2d 65). By asserting a derivative cause of action, Mrs. Teresi did not place her physical condition in issue. Consequently, she was entitled to invoke the physician-patient privilege. The plaintiffs will, however, be precluded from introducing evidence at trial concerning matters as to which the privilege has been asserted (see, Hughson v. St. Francis Hosp., supra). Bracken, J.P., Altman, Krausman and Goldstein, JJ., concur.