LUCE v. STATE 85728 (1999)

After a trial on liability, defendant, State of New York (State), was found liable in negligence and malpractice for injury sustained by Frank J. Luce, Jr., for whom claimant was appointed guardian ad litem, when Luce attempted suicide while a patient at Gowanda Psychiatric Center.   Some of the same State-employed health care professionals who were found negligent in the liability trial continued to treat Luce after the suicide attempt.   After the trial on liability, claimant objected to any private consultation between the Assistant Attorney-General (defense counsel) and those State employees furnishing care to Luce. The Court of Claims denied the motion by the State to permit defense counsel to confer privately with its employees who have continued to treat Luce and prohibited any communication between defense counsel and the employees except under CPLR article 31 or with claimant's consent.   That was error.

Claimant waived all applicable claims of privilege relative to Luce's medical and psychiatric care by filing the claim (see, Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456-457, 470 N.Y.S.2d 122, 458 N.E.2d 363;  Conrad v. Park, 204 A.D.2d 1011, 612 N.Y.S.2d 524;  Wachtman v. Trocaire Coll., 143 A.D.2d 527, 532 N.Y.S.2d 943;  cf., Dillenbeck v. Hess, 73 N.Y.2d 278, 286-288, 539 N.Y.S.2d 707, 536 N.E.2d 1126;  Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857).   Claimant's reliance on Stoller v. Moo Young Jun, 118 A.D.2d 637, 499 N.Y.S.2d 790, Cwick v. City of Rochester, 54 A.D.2d 1078, 388 N.Y.S.2d 753, and Anker v. Brodnitz, 98 Misc.2d 148, 413 N.Y.S.2d 582, affd. 73 A.D.2d 589, 422 N.Y.S.2d 887, lv. dismissed 51 N.Y.2d 743, 432 N.Y.S.2d 364, 411 N.E.2d 783, is misplaced.   Those cases hold only that defense counsel may not privately interview nonparty treating physicians during the discovery phase of an action (see also, Fraylich v. Maimonides Hosp., 251 A.D.2d 251, 674 N.Y.S.2d 668;  Tiborsky v. Martorella, 188 A.D.2d 795, 796-797, 591 N.Y.S.2d 547).   If this were an action against the individual health care providers, they would be entitled to confer privately with counsel.   In view of claimant's waiver of privilege, neither their status as employees of the State nor the fact that they have continued to treat Luce affects that entitlement.

Order unanimously reversed on the law without costs and motion granted.

MEMORANDUM: