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Monthly Archives: February 2015

Hamilton v Miller,

23 N.Y.3d 592, 992 N.Y.S.2d 190 [2014]

Disclosure rules in the CPLR and the Uniform Rules for the Trial Courts require disclosure of medical reports accompanying defense physical examinations. (CPLR 3121, 22 NYCRR 202.17) Plaintiffs sometimes balk at the production of reports, claiming that they have not yet retained physicians to testify at trial, and therefore have no reports to produce. Defendants, of course, respond that they cannot reasonably be required to retain examining physicians if they don’t know what they are supposed to look for. The Court of Appeals here considered this problem.

At first blush, the decision favors the plaintiffs’ argument. Closer examination shows that the Court’s interpretation of the rules still places a substantial burden on plaintiffs. The limits of this burden remain to be worked out.

Before the Court were two lead-paint-poisoning cases, and the question in each was whether the plaintiffs could be compelled to produce medical reports detailing each injury claimed by the plaintiffs and causally relating them to exposure to lead-based paint. The Court of Appeals held that it was an abuse of discretion to compel the plaintiff to produce such reports.

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When a non-party witness is deposed, is there any place in the deposition room for the witness’ counsel? In two cases, Thompson v Mather, and Sciara v Surgical Assoc., the Fourth Department took a hard line against any participation by counsel for the witness. The court read CPLR 3113 as denying counsel any right to participate in any way, and as most definitely denying counsel any right to object on any ground, whether based on privilege or otherwise.

Effective September 23, 2014, CPLR 3113 (c) has now been amended so as to overrule this line of cases. A new sentence has been added, allowing counsel for a non-party deponent to participate in the deposition and make objections on behalf of the deponent in the same manner as counsel for a party. Read More

Kneisel v QPH, Inc.,

___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00503 [2nd Dept., 2015]
The issue here was whether medical privilege blocked the disclosure of the name and address of the plaintiff’s decedent’s fellow patient, who might have witnessed the acts of malpractice and negligence alleged against the defendant hospital.
As a general matter, if disclosure of their names and addresses of fellow patients will not carry with it any information which would also disclose their diagnosis and treatment, the privilege is not violated. So, in Rabinowitz v St. John’s Episcopal Hosp., 24 AD3d 530, the alleged negligence occurred in an emergency room. Plaintiff’s decedent fell from a gurney, leading to his death. Plaintiff sought disclosure of the names and addresses of patients in the treatment area, so as to ascertain whether there were any witnesses to the fall. The court held that disclosure of the names and addresses of non-party patients who may have been eyewitnesses does not violate the doctor-patient privileges of the non-party patients, provided that the demanding party does not seek to identify patients by the treatment they received and provided that the location in the hospital does not itself reveal the non–party’s medical status. Since an emergency room provides a broad range of services, disclosure in Rabinowitz did not violate the privilege.
In Kneisel, by contrast, both the plaintiff’s decedent and the fellow-patient were residents of Holliswood Hospital, in a unit for children from 12 to 15 years of age suffering from specific psychiatric disorders. Disclosure of the roommate’s presence in that unit would necessarily have revealed her medical status, and so disclosure was prohibited by the medical privilege.