AKEL v. GERARDI (2021)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 9, 2019, which denied defendants' motion to compel plaintiff to produce HIPAA-compliant authorizations for mental health records, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the motion granted.

In this medical malpractice action, plaintiff seeks to recover for injuries allegedly caused as a result of defendants' negligence in performing surgeries to treat plaintiff's heart condition.  Plaintiff claims injuries including shortness of breath, chest pain and tightness, dyspnea, heart palpitations, tachycardia, dizziness, nausea, insomnia, fatigue, maralgia paresthetica, and “difficulty with activities of daily living.”  Defendants contend that many of these complaints predated their treatment of plaintiff and stemmed not from this treatment but from various underlying mental health conditions.  Specifically defendants point to evidence in the record that plaintiff had been diagnosed with various psychological conditions before the subject surgeries;  that these psychological conditions were linked to several of the complained-of conditions;  that plaintiff complained of at least some of these conditions before the alleged malpractice occurred;  and that subsequently doctors were unable to locate a nonpsychological explanation for these conditions.  We find that this evidence is sufficient to warrant discovery as to whether or to what extent these underlying psychological conditions, and not the alleged malpractice, caused the complained-of injuries (see Brito v. Gomez, 33 N.Y.3d 1126, 107 N.Y.S.3d 797, 131 N.E.3d 904 [2019];  Shamicka R. v. City of NY, 117 A.D.3d 574, 575, 985 N.Y.S.2d 569 [1st Dept. 2014];  Green v. City of New York, 281 A.D.2d 193, 721 N.Y.S.2d 353 [1st Dept. 2001];  Friedlander v. Morales, 70 A.D.2d 501, 415 N.Y.S.2d 831 [1st Dept. 1979]).