This medical malpractice claim brought by John and Teresa Libra on behalf of their infant daughter, Nicole Libra, who was treated by the defendants until the age of 15 for a condition known as Ebstein's Anomaly. Thereafter, the infant plaintiff suffered cardiac arrest and it is alleged that the arrest resulted due to the failure of the defendants to diagnose and treat Long QT Syndrome. The Long QT Syndromes are a group of genetic conditions which can lead to sudden cardiac death and are often diagnosed only after the sudden death of a family member. Following Nicole's cardiac arrest and the diagnosis of Long QT Syndrome, her mother and two sisters were tested and all three were diagnosed with the condition. The plaintiffs allege that the defendants were negligent by failing to obtain the family history to determine whether there was a history of syncope, sudden cardiac death, or other cardiac conditions in Nicole's family.

Plaintiff Teresa Libra testified at her examination before trial about her own medical history as well as the medical history of family members. She testified that she told defendant [*2]Smith about her history of fainting since being in her 20's and that she was concerned that there was something wrong with her that caused Nicole to develop her condition. She also testified about multiple treatments for her fainting condition, including medications, neurology appointments, a defibrillator and a pacemaker she received after Nicole's event. Teresa Libra further testified about her diagnosis of Long QT syndrome a month after Nicole's diagnosis. No objection was raised during the questioning by plaintiff's counsel, nor did Teresa Libra assert a physician/patient privilege. The defendants now move to compel Teresa Libra to provide the names, addresses and medical authorizations for all of her medical providers from birth to present.^[FN1] Plaintiffs had previously provided certain medical records concerning Teresa Libra's prenatal records for her pregnancy with both Nicole and her younger daughter Rebecca. Plaintiff's counsel also attempted to obtain records from two additional physicians and found that in one case the records had been destroyed and in the other case, the physician was no longer licensed to practice in New York and could not be located.

In moving to compel the production of the plaintiff mother's medical records, defendants argue that the plaintiff is a party in her own right by bringing a derivative claim and that she waived her physician/patient privilege by responding to the questions at the deposition. The contention that a plaintiff who sues only in her representative capacity as mother and natural guardian of an infant thereby places her medical history in issue and waives her physician/ patient privilege, has been rejected by the courts. A representative plaintiff is not comparable to a party who has brought a personal injury or medical malpractice action on her own behalf and is thus deemed to have waived the physician/patient privilege with respect to her own medical history by placing her physical and mental condition directly in issue in the litigation. See, Herbst v. Bruhn, 106 AD2d 546 (2d Dept. 1984); see also, Scharlack v. Richmond Memorial Hospital, 102 AD2d 886 (2d Dept. 1984). As such, Teresa Libra did not waive the physician/patient privilege with respect to her own medical records concerning her medical history outside the period of the subject present suit. See, Bolos v. Staten Island Hospital, 217 AD2d 643 (2d Dept. 1995); see also, Teresi v. Grecco, 206 AD2d 517 (2d Dept. 1994). However, by responding to questions concerning her medical history upon oral deposition, Teresa Libra waived her right to assert the physician/patient privilege with respect to the medical records sought; nevertheless, merely because she waived her privilege, defendants are not automatically entitled to disclosure of the medical records. See, Herbst, supra.; see also, Sharlack, supra. CPLR §3101(a) provides for the full disclosure of all evidence which is material and necessary in the prosecution or defense of an action. The statute has been construed to require the disclosure of "any fact bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason." Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968). While the scope of disclosure is generally a matter within the sound discretion of the court in which the action is pending, such discretion is not unlimited. See, id. While the burden of establishing that the material sought to be discovered is privileged falls upon the plaintiffs in opposing disclosure, it [*3]is incumbent upon the defendants in seeking the 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 that has a bearing on the defense of the claims prosecuted by the infant plaintiff. See, Herbst, supra. The defendants, however, have failed to meet their burden inasmuch as they have offered only an attorney's affidavit to establish relevance. It is well settled that an attorney's affidavit in support of disclosure contain the bare unsubstantiated conclusory statements as to relevance is insufficient to establish a factual predicate for the disclosure of the medical records here. See, Scalone v. Phelps Memorial Hospital Center, 184 AD2d 65 (2d Dept. 1992); see also, Herbst, supra. As such, the defendants' motion to compel the production of said medical records and authorizations is denied.

The defendants have also moved to strike the Note of Issue filed by the plaintiff on March 5, 2007. The defendants timely moved to strike on March 12, 2007 pursuant to Uniform Rules for Trial Courts §202.21(e) that provides that within 20 days after service of the Note of Issue and Certificate of Readiness any party to the action may move to vacate the Note of Issue upon affidavit showing in what respects the case is not ready for trial, and that the court may vacate the Note of Issue if it appears that a material fact in the certificate of readiness fails to comply with the requirements of some of the section in some material respect. See, 22 NYCRR 202.21(e). This Court's scheduling order provided that the independent medical examination of the infant plaintiff was to be completed within 60 days of the filing of the Note of Issue. Defendants argue that they cannot comply with the Court's scheduling order because the infant plaintiff is scheduled to have heart surgery in June of 2007 and that they wish to obtain medical records from the surgery before making the determination whether to schedule the examination, which will take approximately two months. Defendants argue that if the Note of Issue is not stricken, the case could be on the verge of trial by the time the IME report is issued, placing the defendants at a significant disadvantage. Where a party timely moves to vacate a Note of Issue it need show only that a material fact in the Certificate of Readiness is incorrect or that the certificate of readiness fails to comply with the statutory requirements in some material respect. See, Vargus v. Villa Josefa Realty Corp., 28 AD3d 389 (1st Dept. 2006). It is clear in items seven and eight on the Certificate of Readiness for Trial, that discovery proceedings were completed and there are no outstanding requests for discovery, were not "completed" as marked by plaintiff's counsel and that defendants cannot obtain the medical examination within the 60 days of filing due to the infant's upcoming surgery. As such, the defendant's motion to strike the Note of Issue is granted.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendants' motion to compel is denied, and it is furtherORDERED, that the defendants' motion to strike the Note of Issue is granted.

ENTER

Dated: April 16, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice [*4]