Virtually every medical malpractice case presents issues as to the permissible extent of discovery of the plaintiff’s medical records. CPLR §3101, requiring “full disclosure of all matter material and necessary in the prosecution or defense of an action,” and CPLR §4504, codifying the physician-patient privilege, require reconciliation on specific facts. The oft cited decision of the Court of Appeals in Koump v. Smith, 25 N.Y.2d 287 (1969), established long ago that plaintiffs who affirmatively place their physical or mental condition in controversy waive the doctor-patient privilege. As amplified by the court in Dillenbeck v. Hess, 73 N.Y.2d 278 (1989), “[A] party should not be permitted to affirmatively assert a medical condition in seeking damages … while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party’s claim.” Id. at 287. In the ever-increasing complexity of malpractice litigation, this reconciliation often requires more skill than is available to the task.
As a result, there are instances in which the defense is hastily limited to obtaining the records of treatment to the plaintiff’s left foot, because at the time of the preliminary conference there is insufficient information to demonstrate that there are other aspects of the patient’s treatment which have a material bearing upon the injuries sustained, the treatment required, and the extent of damages which require compensation. The appellate courts have consistently held that the decisions on access to medical records are to be made on the basis of in camera review of the records and the materiality of their content to the claims in the case. See Cynthia B. v. New Rochelle Hospital, 60 N.Y.2d 452, 461 (1983), and James v. 1620 Westchester Ave., 147 A.D.2d 575 (1st Dep’t 2017). That option is frequently premature when the judge supervising discovery is called upon to make a ruling early in the course of the litigation. The defense at that point has no access to the records in issue and no ability to obtain the expert witness input to explain how the records are relevant.
The realities of discovery in complex cases create situations in which access to vital information is foreclosed simply because there is insufficient data to allow for an evidence-based decision. Cf. Gumbs v. Flushing Town Center, 114 A.D.3d 573 (1st Dep’t 2014). Although there may be relevant or even dispositive information in the records in dispute, it is impossible for defense counsel to assess the materiality of records which are not available to be examined. For this reason, the court has held that CPLR §3101 allows discovery of material when it is “sufficiently related” to the issues in the litigation such that the effort to obtain it in preparation for trial is reasonable. Allen v. Crowell-Collier, 21 N.Y.2d 403 (1968). The court explains that “necessary” as used in CPLR §3101 only means “needful” rather than “indispensable”.
Despite what appear to be clear guidelines established statewide by the Court of Appeals, the decisions in the lower courts have been anything but uniform. There are sharp dissents in the Appellate Division, First Department, decisions in both the James and Gumbs cases as well as the tortuous decision in Brito v. Gomez, 168 A.D.3d 1 (1st Dep’t 2018), where the dissent points to mischaracterization of the claim by the majority. There has also been a cited divergence in the application of CPLR §3101 between the First and Second Departments, as seen in Bravo v. Vargas, 113 A.D.3d 577 (2d Dep’t 2014) and Diako v. Yunga, 148 A.D.3d 438 (1st Dep’t 2017). Some of the decisions do not reflect that there was any access to the medical records in issue by the court or any of the attorneys when the scope of discovery was determined. Courts establish time periods of treatment for which authorizations are required or prohibited with no apparent basis for such determination. Cf. Romance v. Zavala, 98 A.D.2d3d 726 (2d Dep’t 2012). In Cynthia B., 60 N.Y.2d at 456, Special Term had confirmed a referee’s determination that the records sought were “totally irrelevant to the issues,” before the Court of Appeals held that established precedent required that the records be disclosed in their entirety. The law is supposed to make life more predictable, not less so.
It is useful to examine exactly what is being protected by the application of the physician-patient privilege in these cases. With prevailing HIPAA restrictions as well as ethical constraints on counsel, there is minimal risk that the added increment of information in records of the patient’s other medical care will be disclosed beyond a small group of individuals whose obligation is to provide an evidence-based defense to health care workers sued on behalf of their patient. Not one of the decisions dealing with this issue recounts any instance in which there has been disclosure of protected health information to the prejudice of the plaintiff. There is no compelling reason to protect this small increment of confidential information by the extreme measure of denying any access by defense counsel.
Trade secrets are routinely disclosed in commercial litigation for limited purposes, and confidentiality orders are used to enforce the limitations. See Oppenheim v. Mojo-Stumer, 69 A.D.2d 407 (1st Dep’t 2010). Family law and criminal cases necessarily involve the disclosure of the most sensitive psychiatric records regarding non-parties, even infants, who have never affirmatively placed their conditions in controversy. In appropriate cases, the trial court may order that sensitive information disclosed in discovery be limited to a defined population, and if confidential records become part of the Court’s file, they are to be filed under seal. M.C. (Anonymous) v. Sylvia Marsh, 103 A.D.3d 676 (2d Dep’t 2013). The fact that sealing orders are not commonly sought for records used in malpractice cases suggests that the concern over confidentiality does not present a significant policy issue.
As stated by Judge Alexander in Williams v. Roosevelt Hospital, 66 N.Y.2d 391, 396 (1985), the statutory privilege protects confidential communications, not the mere facts and incidents of the patient’s medical history. Denying defense counsel access to an entire medical record, which might contain confidential disclosures by the patient but certainly contains a significant quantity of other information, cannot be supported on the basis of logic or law. Much of the information that a court might regard as confidential is found in many of the patient’s medical records, already in the possession of the defendants. The Court of Appeals has acknowledged the criticism of commentators that there is little empirical data to support the proposition that the physician-patient privilege does anything to promote public health. Dillenbeck, 73 N.Y.2d at 285. Public policy does not favor an approach which allows the attorney for the plaintiff to use the marginal value that the privilege has in this context to determine which evidence her adversary may access. Nowhere else in New York litigation would such an unbalanced process be considered consistent with the true administration of justice.
The ad hoc treatment of defense counsel’s access to the records of care by non-defendants produces random and inconsistent results. It is up to defense counsel to provide the Court with a measured approach which yields the discovery needed to secure the rights of the defendant, while safeguarding the privacy of the individuals referred to in the records. The physician-patient privilege of the plaintiff was waived when the action was commenced, and there are frequently other family members, also entitled to protection, whose confidential information is contained in the records of the patient. If the only attorney in the case who has access to the disputed records is the attorney for the plaintiff, the privacy of others not represented by plaintiff’s counsel is already violated. The potential for adverse consequences of disclosure among family members, particularly in the case of psychiatric records, is far more likely than harm from disclosure to defense counsel or her physician client, both of whom are ethically obligated to protect the information from disclosure. In this context, constraining the access of defense counsel beyond their clients’ records makes no sense, nor does it make sense to allow counsel for the plaintiff to refuse an authorization solely on the basis of the patient’s recollection of the reason for the treatment.
Defense counsel should strive to avoid the conclusive determination of access to the records of care rendered by non-parties from being addressed before the issue is ripe. If rulings are made in early discovery, strict constraints on access need to be avoided, and the defense has to preserve the right to address the issue when the evidence and expert analysis allows the argument to be developed. See Elmore v. 2720 Concourse Associates, 50 A.D.3d 493 (1st Dep’t 2008). The focus needs to remain on what records are “sufficiently related” to the overall issues in the case, as the Court of Appeals held in Allen, 21 N.Y.2d at 406. Counsel may also need to be ready to show that the unsubstantiated reference of the First Department in Brito, 168 A.D.3d at 8, to “the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries (emphasis supplied) affirmatively placed in controversy” is yet another mischaracterization.
This article is also on Law.com: Access to Evidence and the Physician-Patient Privilege