[*1]
| Hunter v Richmond Univ. Ctr. |
| 2011 NY Slip Op 51485(U) [32 Misc 3d 1228(A)] |
| Decided on August 5, 2011 |
| Supreme Court, Richmond County |
| Maltese, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Richmond County
Angel Hunter, an infant,
by his mother and natural guardian LISA AVETA and LISA AVETA, individually, Plaintiffs
against
Richmond University Medical Center; MICHAEL MORETTI, M.D.
and MARINO A. POLISENO, D.O., Defendants.
|
101945/09
Plaintiffs are represented by the law firm of Fitzgerald & Fitzgerald, P.C. Defendant
Richmond University Medical Center is represented by the law firm of Bartlett, McDonough,
Bastone & Monaghan, LLP. Defendant Michael Moretti, M.D. is represented by the law firm of
Heidell, Pittoni, Murphy & Bach, LLP. Defendant Marino A. Poliseno, D.O. is represented by
the law firm of Vaslas, Lepowsky, Hauss & Danke, LLP.
Joseph J. Maltese, J.
The plaintiffs seek a protective order against the defendants Richmond
University Medical Center (RUMC), Michael Moretti, MD and Marino A. Poliseno, DO, to
preclude discovery of any and all medical records concerning treatment or diagnosis of the
plaintiff Lisa Aveta either before or after her pregnancy with the infant plaintiff Angel Hunter.
The protective order is granted as to Aveta's medical treatments and diagnoses after the birth of
Hunter, and these records are precluded from discovery. The protective order is denied as to
Aveta's medical, gynecological and obstetrical records before Hunter's birth, and such discovery
is granted to all [*2]the defendants.
Facts
During a deposition, Aveta, the infant
plaintiff's mother, stated that her family history included brain tumors, diabetes, Chromosomal
Trisomy 21 "Down's Syndrome," and deafness. Aveta has a personal history of seizure disorder
and asthma, and has had gynecological surgery. Aveta also stated she previously had fourteen
pregnancies of which nine resulted in spontaneous abortions and one in neonatal death. At least
two of Aveta's children including Hunter have had seizure disorders. Aveta has had premature
deliveries.
Aveta first received obstetrical care for Hunter's delivery on January 18, 2008. She
was admitted to RUMC for delivery on May 14, 2008. Hunter was delivered on the same day,
and he had a complicated post-natal course in the hospital. Aveta was discharged from RUMC on
May 18, 2008. Hunter was discharged from RUMC a month later, on June 18, 2008.
Among other allegations, Aveta states that her pregnancy was high-risk, and that the
pregnancy was improperly managed. According to Aveta, that improper management resulted in
Hunter's injuries. Aveta alleges a derivative injury to herself, because she provides special care to
Hunter, and she has added expenses.
On December 29, 2010, the defendant Dr. Poliseno demanded Aveta's medical
records for the ten years prior to Hunter's delivery. On January 6, 2010, Dr. Poliseno demanded
the records of any and all medical providers that treated Aveta during any and all pregnancies.
On March 16, 2011, the plaintiff improperly moved to preclude discovery under the index
number 102662/10. That action was consolidated with an earlier action under index number
101945/09 by stipulation on February 1, 2011.
Discussion
This action is
founded upon alleged medical malpractice, and the defendant's seek the plaintiff Aveta's prior
medical history. The Civil Practice Law and Rules provides that: "[t]here shall be full disclosure
of all matter material and necessary in the prosecution or defense of an action, regardless of the
burden of proof..."[FN1]
"Upon objection by a person entitled to assert the privilege, privileged material shall not be
obtainable."[FN2] "Unless
the patient waives the privilege, a person authorized to practice medicine ... shall not be allowed
to disclose any information which he acquired in attending a patient in a professional capacity,
and which was necessary to [*3]enable him to act in that
capacity."[FN3] Therefore,
despite a policy promoting full disclosure from an individual, without a patient's waiver,
specified providers of medical or surgical care may not disclose information that was
communicated to that provider and used to treat the individual patient.
The New York Court of Appeals has held that "where the mental or physical
condition of a party is in controversy, that party may be required to make available for inspection
relevant hospital and medical records. The initial burden of proving that a party's physical
condition is in controversy' is on the party seeking the information and it is only after such an
evidentiary showing that discovery may proceed under the statute [CPLR §
3124a]."[FN4] As to the
evidence, "an affidavit must be sworn to by a person having knowledge of the facts, an affidavit
by an attorney should be disregarded unless he happens to have personal knowledge of the
facts."[FN5] Probative
evidence must show that medical records are material and necessary to the action.[FN6]
Here, the attorney for RUMC affirms that she is fully familiar with the facts and
circumstances of this action based upon a review of files. The attorney for Poliseno submits an
affirmation based on information and belief founded upon files and records. Likewise, the
attorney for Moretti states he is familiar with pleadings and procedures of this action. The request
for Aveta's medical records is based upon Aveta's statements during a sworn deposition on July
29, 2010, with which the counsel for RUMC affirms she is fully familiar. During that deposition,
Aveta made certain disclosures concerning her past obstetrical history including a report of nine
spontaneous abortions and the neonatal death of her infant. Aveta also related a history of
gynecological surgery. Additionally, Aveta disclosed her medical history of seizures and
respiratory disease and a family history of diabetes. Each of these disclosures may have relevance
to high-risk pregnancy. Therefore, counsel RUMC as a demanding party has borne the burden of
showing personal knowledge of facts made known at Aveta's deposition.
The plaintiff's Bill of Particulars specifies that the defendants failed to properly treat
Aveta's high-risk pregnancy. This resulted in injury to Hunter, and Hunter's injury leads to
Aveta's derivative claim. Clearly, Aveta's high-risk pregnancy with Hunter must be evaluated in
the context of her own past medical, gynecological, and obstetrical history. A mother's exposure
to chemical or pharmaceutical agents while in utero cannot be severed from the course of
her [*4]neonate.[FN7] Analogously, a mother's prior medical,
gynecological, and obstetrical risks and history cannot be severed from an alleged high-risk
pregnancy. It is precisely those risks which may define a heightened risk, along with the course
of the pregnancy itself. Therefore, Aveta's prior medical, gynecological and obstetrical history are
relevant to her claim of malpractice against the defendants.
Relevance supported by the facts brought forth by the demanding party, when taken
together, require the plaintiff to waive her physician-patient privilege and allow discovery of
records from her past medical, gynecological, and obstetrical providers.
Hunter's medical records are relevant en toto to this action. Ordinarily, a
party suing in a representative [FN8] or in a derivative capacity [FN9] is not required to disclose their
own medical history. The plaintiff argues that because Aveta is a non-party representative and is
only making a derivative claim for Hunter's added expenses, that her medical records are not
discoverable because of the physician-patient privilege. Aveta argues that the only exception to
this privilege would allow discovery of prenatal care for Hunter, and of her labor and delivery.
Merely suing in a representative capacity does not put one's own medical condition in
controversy.[FN10] A
non-party witness need not disclose privileged medical information communicated to her
physician, but must reveal facts relevant medical incidents or facts concerning herself or her
children.[FN11] A witness
at a deposition may refuse to tell her communications to her doctor, although she must disclose
matters of fact.[FN12] A
plaintiff suing in a representative capacity is not required to disclose their medical care
subsequent to the delivery of a child.[FN13] Moreover, Aveta is not suing in this
derivative action for loss of services, which would have placed her own medical history, as
opposed to her gynecological and obstetrical history, in controversy.[FN14]
However, Aveta has placed her past medical, gynecological and obstetrical history in
controversy by asserting that she had a high-risk pregnancy. Consequently, Aveta's past medical,
gynecological and obstetrical records are relevant and a request for them is founded upon facts.
[*5]In contrast, there is no relevance, supported by facts, that
would support requiring Aveta to disclose postpartum medical, gynecological, or obstetrical
treatment or diagnosis.
Accordingly, it is hereby
ORDERED, that the plaintiff Lisa Aveta's motion for a protective order is denied
concerning her medical, gynecological and obstetrical history, treatment and diagnosis before the
birth of the plaintiff Angel Hunter; and it is further
ORDERED, that Lisa Aveta shall provide to all defendants authorizations to obtain
the records of the prior ten years of treatment and diagnosis relevant to medical and
gynecological care and treatment; and it is further
ORDERED, that Lisa Aveta shall provide to all defendants authorizations to obtain
the records for all of her past obstetrical care; and it is further
ORDERED, that the plaintiff Lisa Aveta's motion for a protective order is granted in
so far as the records of her postpartum medical, gynecological and obstetrical care are precluded
from discovery; and it is further
ORDERED, that the parties shall return for a conference to DCM Part 3, 130
Stuyvesant Place, Third Floor on Tuesday, August 30, 2011 at 9:30 A.M.
ENTER,
DATED: August 5, 2011
Joseph J. Maltese
Justice of the Supreme Court
Footnotes
Footnote 1:CPLR § 3101 (a).
Footnote 2:CPLR § 3101 (b).
Footnote 3:CPLR § 4504 (a).
Footnote 4:Dillenbeck v. Hess, 73
NY2d 278, 286 - 287 [1989]; citing Koump v. Smith, 25 NY2d 287, 300 [1969].
Footnote 5:Koump v. Smith, 25
NY2d at 300.
Footnote 6:Cardillo v. Hillcrest Gen.
Hosp.-G.H.I. Group Health, Inc., 134 AD2d 229, 230 [2d Dept 1987].
Footnote 7:In re New York County DES
Litigation, 168 AD2d 44, 46 [1st Dept 1991].
Footnote 8:Roman v. Turner Colours,
Inc., 255 AD2d 571, 572 [2d Dept 1998].
Footnote 9:Scipio v. Upsell, 1 AD3d 500 [2d
Dept 2003].
Footnote 10:Sibley v. Hayes, 126
AD2d 629, 631 [2d Dept 1987].
Footnote 11:Williams v. Roosevelt
Hosp., 66 NY2d 391, 393 [1985].
Footnote 12:Bolos v. Staten Island
Hosp., 217 AD2d 643, 643 - 645 [2d Dept 1995].
Footnote 13:Teresi v. Grecco, 206
AD2d 517 [2d Dept 1994].
Footnote 14:Roman v. Turner
Colours, 255 AD2d 571, 572 [2d Dept 1998].