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Plaintiff Sues for Medical Malpractice, Defense Argues Doctor-Patient Privilege

On 17 March 1979, infant plaintiff was born. Allegedly, infant plaintiff suffered brain damage, a brain injury, as a result of negligent obstetrical care.

Thus, a medical malpractice action was brought by the infant and his father on the basis of the birth injury or birth injury accident.

At an examination before trial, plaintiffs produced the infant’s mother, a nonparty witness.

Defendants subsequently moved for an order directing the infant’s mother to appear for further examination before trial and to answer questions concerning her prior health history and the birth and physical condition of her two eldest children.

A New York Injury Lawyer said that although Special Term expressed its view that disclosure should be directed, it denied the motion on constraint of the Second Department’s holding in a similar case.

The Appellate Division reversed and granted the motion for further examination before trial. The court held that there is no physician-patient privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity.

Under the State’s liberal discovery scheme: there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. However, upon objection of a party, privileged matter shall not be obtainable. Therefore, a Bronx Personal Injury Lawyer said that potentially shielded from discovery are communications deemed privileged under the Civil Practice Law and Rules (CPLR 4504), which provides in part that: Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, or dentistry shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

Although the physician-patient privilege did not exist at common law, New York became the first jurisdiction to adopt the privilege by statute in 1828. A Brooklyn Personal Injury Lawyer said its enactment was based on the belief that fears of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment. The privilege has been severely criticized because of serious doubts that its truth-inhibiting effect can be justified by any real promotion of the public health. The privilege applies at examinations before trial and it covers both oral testimony and documents, such as hospital records, which presumably are drawn up in large part based on communications imparted by the patient to the treating physician.

Although the statute is phrased in terms of not allowing a medical professional to reveal information acquired in a professional capacity from a patient, it serves also to protect the patient from being compelled to disclose the substance of a communication made to the medical professional in an attempt to obtain treatment. Otherwise, little practical protection would be accorded patient-doctor communications. That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person’s medical history.

In a similar case, the court has held that: The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, “What did you say or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.

Thus, just as a party cannot conceal a fact merely by revealing it to his lawyer, a witness may not refuse to answer questions regarding matters of fact, such as those posed in this case, as to whether her children had any physical or congenital problems, whether she was in the care of a physician or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate to events that required medical care or advice from a physician.

In determining whether certain information is protected under the physician-patient privilege, the burden is on the party asserting the privilege to show the existence of circumstances justifying its recognition.

The court finds that there is no need to decide, on the instant appeal, whether the information sought by defendants is relevant. Such a determination must be made by the trial court based on the circumstances of each case with due regard for the policy favoring broad pretrial discovery. The court interprets the certified question of law as asking only whether the Appellate Division had the power to allow further examination of the witness at defendants’ option. The certified question is answered in the affirmative because the court holds that physician-patient privilege does not provide a basis for the witness to refuse to reveal the information sought.

Therefore, a witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to testify as to relevant medical incidents or facts concerning herself or her children.

Accordingly, the court finds no error in the Appellate Division’s decision granting defendants’ motion for further examination of the nonparty witness.

For a free legal consultation, contact Stephen Bilkis & Associates. We have highly competent New York City Medical Malpractice Attorneys all set to assist you and answer your legal queries. A New York City Birth Injury Lawyer from our firm are willing to assist you regarding birth injury related problems.

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