Defendants Buck and Community General Hospital moved to compel the plaintiff to produce medical authorizations for the mental health records of the decedent, the plaintiff, who is the decedent's wife, and their children in this medical malpractice and wrongful death action. Thereafter, defendants Markham and Onondaga Hill Emergency Physicians cross-moved for the same relief. The plaintiff has cross-moved for a protective order, alleging that said records are privileged pursuant to the physician/patient privilege.

The complaint alleges that the defendants failed to diagnose the decedent's streptococcus infection on January 5, 2005 and January 7, 2005, and that as a result the decedent died on January 8, 2005 and, inter alia,contains a claim for conscious pain and suffering during that three day period. At her examination before trial the plaintiff testified that the decedent had treated with a psychiatrist for clinical depression and anxiety prior to his death. The plaintiff also testified that she and her children treated with psychiatrists following the decedent's death.

These defendants argue that the decedent's psychiatric records are relevant to the claim of conscious pain and suffering, as well as to the claim of the plaintiff and her children for loss of services, support, education and guidance that the decedent would have provided. In determining a conscious pain and suffering award for the interval between injury and death, the elements to be considered are the degree of consciousness, severity of pain and apprehension of impending death, along with the duration of the suffering. See, Jones v. Simione, 112 AD2d 772 (4th Dept. 1985). The law is well settled that a patient in a personal injury action only waives the physician/patient privilege when the patient's mental or physical condition is in controversy. See, Dillenbeck v. Hess, 73 NY2d 278 (1998). If such a condition is in controversy, a party must provide duly executed and acknowledged written authorizations for the release of pertinent records under the liberal discovery provisions of the CPLR and that party has waived the physician/patient privilege by affirmatively putting his or her physical or mental condition in issue. See, Cynthia B. v. New Rochelle Hospital Medical Center, 60 NY2d 452 (1983). Here, the plaintiff has claimed that the decedent suffered for three days prior to his death and there is no basis for the defendants' contention that the decedent has placed his mental health history at issue and that his entire mental health record should be discoverable. Nor have the defendants offered any legal authority for this proposition. In addition, there is nothing in the record to show that the decedent received mental health treatment during that three day period. As such, there is no basis for the defendants' request to have access to the decedent's mental health records as it relates to the claim for conscious pain and suffering.

Nor is there a basis for the request with respect to the mental health treatment records of [*2]the plaintiff^[FN1], the children or the decedent's records as they relate to those claims. In a wrongful death action, the plaintiff is entitled to recover for pecuniary injuries incurred as a result of the wrongful death of the decedent, including the decedent's loss of earnings, loss of services the survivor might have received from the decedent, loss of parental guidance from the decedent and the possibility of inheritance from the decedent. See, Huthmacher v. Dunlop Tire Corp., 309 AD2d 1175 (4th Dept. 2003). No damages may be awarded for a beneficiary's grief or loss of companionship because such losses are not pecuniary in nature. See, Erbstein v. Savasatit, 274 AD2d 445 (2d Dept. 2000). The defendants here have failed to show that these records would be relevant and the plaintiff has not placed her mental health condition in controversy or waived her physician/patient privilege in any way. Nor have the defendants shown the relevance of records to the claim of pecuniary loss of parental care, advice, guidance and training of the decedent's children. Pecuniary injuries that result from a child's loss of parental nurture and care, physical, moral and intellectual training may be considered within the calculation of pecuniary injury on behalf of the decedent's child. See, Zygmunt v. Berkowitz, 301 AD2d 593 (2d Dept. 2003). The plaintiff has not put the mental conditions of her children at issue by making a claim for loss of parental nurture and care and guidance, and the defendants have shown no relevance with respect to the records. The defendants' motion with respect to the mental health records of the decedent, the plaintiff and their children is therefore denied.

The plaintiff, as the movant for a protective order, has the burden of demonstrating the impropriety of the discovery sought. See, Barnes v. State, 67 AD2d 1065 (3d Dept. 1979). The plaintiff has done so here inasmuch as the mental health history of the decedent, the plaintiff or their children have not been placed in issue and there has been no waiver of the physician/patient privilege. As such, the plaintiff is entitled to a protective order in this matter pursuant to CPLR §3103(a) inasmuch as the records are privileged pursuant to the physician/patient privilege set forth in CPLR §4504(a).

NOW, therefore, for the foregoing reasons, it is

ORDERED that the defendants' motion to compel the plaintiff to execute medical authorizations for the decedent, the plaintiff and their children's psychiatric treatment is denied, and it is further

ORDERED that the plaintiff's cross-motion for a protective order is granted.

ENTER

Dated: August 15, 2007

Syracuse, New York

DONALD A. GREENWOOD [*3]

Supreme Court Justice