Plaintiff Fails To Compel Disclosure Of Surgeon's Personal Medical Records: Court Orders Surgeon To Appear For Deposition To Answer Question Relating to His Jedical Treatment
December, 2006
A New York trial court in New York County recently determined that a surgeon who underwent treatment for an injury to his upper extremities was not required to disclose his personal medical records in an action where plaintiff alleged that the surgeon negligently performed a surgical facelift on the plaintiff. Brower v. Beraka, 12 Misc.3d 1108, 821 N.Y.S.2d 369 (N.Y. Sup. 2006). The Court concluded that the plaintiff did not meet her burden of demonstrating that the physician had “affirmatively placed his or her physical or medical condition in controversy.” Aycadi v. Baron, 302 A.D.2d 313 (1st Dep’t 2003). Accordingly, the surgeon’s medical records were exempt from disclosure pursuant to the physician-patient privilege. Dillenbeck v. Hess, 73 N.Y.2d 278 (1989).
The Court stated that the defendant did not attempt to “excuse the conduct complained of by the plaintiff” on the basis of any injury or physical impairment. Further, the defendant did not at any time voluntarily disclose that he suffered any injury to his arm. Rather, the Court noted that a nurse at the defendant’s office informed the plaintiff after the surgery that the defendant would be out of his office “for a period of time because he was hospitalized for surgery on his arm or hand.” Brower, supra, at p. 1108. Accordingly, the defendant did not waive the physician-patient privilege and his medical records were not discoverable.
The Court further noted that the scope of the physician-patient privilege is not strictly confined to “communications” between a doctor and patient, but rather includes any medical information acquired by the physician through the application of professional skill or knowledge. The privilege does not extend “to the mere facts and incidents of a person’s medical history.” Brower, supra, at p. 1008; see also Neferis v. DeStefano, 265 A.D.2d 464 (1st Dep’t 1999). Accordingly, an individual cannot “refuse to answer questions regarding matters of fact” concerning whether he suffered from a physical impairment or was undergoing medical treatment during a specified period of time. Williams v. Roosevelt Hospital, 66 N.Y.2d 391, 396 (1985).
The Court concluded that while the defendant’s medical records were not discoverable, the “facts and incidents” surrounding the defendant’s medical history were discoverable. Accordingly, the Court ordered the defendant to appear for a deposition to answer questions related to the facts and incidents surrounding his medical history, specifically whether he suffered from a physical impairment and whether he was being treated by a physician at the time of the alleged malpractice. The Court further determined that the defendant’s compelled testimony was not a voluntary disclosure of his medical history, and that since he in no way placed his physical condition in controversy, he did not waive his physician-patient privilege and his medical records were not subject to discovery.
Learning Point:
It is the burden of a plaintiff in a medical malpractice action to demonstrate that the defendant-physician has placed his physical and/or mental condition in controversy in order to waive the physician-patient privilege, and thereby subject the defendant-physician’s personal medical records to discovery. However, even if the plaintiff fails to meet this burden, the defendant-physician can still be compelled to appear for deposition and answer questions specifically related to his medical history. Although the defendant-physician can be compelled to answer these questions at deposition, the defendant-physician is not deemed to “have waived his physician-patient privilege” by answering these questions, and, as such, his medical records are still not discoverable. Physicians should learn from Brower not to voluntarily disclose their medical histories to their patients at any time in order to prevent disclosure of their personal medical records in a medical malpractice action.
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