MEIKLE v. Professional Gynocological Services, et al., respondents. (2025)

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated December 10, 2021.  The order, insofar as appealed from, granted those branches of the separate motions of the defendant Bella Gelfinbein, the defendants Professional Gynecological Services, sued herein as Professional Gynocological Services, Irina Vaizman, and Amir Marashi, sued herein as Amir Marshi, the defendant New York Presbyterian Hospital, sued herein as New York Presbyterian Weill Cornell Medical Center, the defendant Nicolle Overstreet, and the defendant Lauren Wong which were to compel the plaintiff to provide authorizations for the release of certain records and denied that branch of the plaintiff's cross-motion which was for a protective order with respect to those authorizations.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Kings County, for the entry of an order in accordance with Public Health Law § 2785(3).

The plaintiff commenced the instant action alleging that the defendants negligently failed to diagnose and treat her for a multitude of pelvic conditions, which led to her being seriously injured.  The defendant Bella Gelfinbein, the defendants Professional Gynecological Services, sued herein as Professional Gynocological Services, Irina Vaizman, and Amir Marashi, sued herein as Amir Marshi, the defendant New York Presbyterian Hospital, sued herein as New York Presbyterian Weill Cornell Medical Center, the defendant Nicolle Overstreet, and the defendant Lauren Wong (hereinafter collectively the moving defendants) separately moved, inter alia, to compel the plaintiff to provide authorizations for the release of records relating to alcohol and drug treatment, mental health information, and HIV-related information.  The plaintiff cross-moved, among other things, for a protective order with respect to those authorizations.  In an order dated December 10, 2021, the Supreme Court, inter alia, granted those branches of the moving defendants’ separate motions and denied that branch of the plaintiff's cross-motion.  The plaintiff appeals.

“ ‘While physician-patient communications are privileged under CPLR 4504, a litigant will be deemed to have waived the privilege when, in bringing ․ a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue’ ” (O'Brien v. Village of Babylon, 153 A.D.3d 547, 548, 60 N.Y.S.3d 92 [alteration and internal quotation marks omitted], quoting Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 672, 974 N.Y.S.2d 563;  see Peterson v. Estate of Rozansky, 171 A.D.3d 805, 807, 97 N.Y.S.3d 724).  “To this end, a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege” (O'Brien v. Village of Babylon, 153 A.D.3d at 548, 60 N.Y.S.3d 92 [citation and internal quotation marks omitted]).  Generally, parties must disclose “all matter material and necessary in the prosecution or defense of an action” (CPLR 3101).  “Material and necessary information is that which is required to be disclosed because it bears upon the controversy at issue and will assist the requesting party in preparing for trial” (Frawley v. City of New York, 221 A.D.3d 973, 974, 202 N.Y.S.3d 135 [internal quotation marks omitted], quoting Greco v. Wellington Leasing L.P., 144 A.D.3d 981, 982, 43 N.Y.S.3d 64).

The Supreme Court has broad discretion to supervise discovery as well as to set the terms and conditions for disclosure and “its exercise should not be disturbed on appeal unless it was improvidently exercised” (Encalada v. Riverside Retail, LLC, 175 A.D.3d 467, 469, 107 N.Y.S.3d 124 [internal quotation marks omitted];  see Cabellero v. City of New York, 48 A.D.3d 727, 728, 853 N.Y.S.2d 165).  Also, “[c]ourts are to interpret discovery requests liberally in favor of disclosure” (Greco v. Wellington Leasing L.P., 144 A.D.3d at 982, 43 N.Y.S.3d 64, quoting M.C. v. Sylvia Marsh Equities, Inc., 103 A.D.3d 676, 678, 959 N.Y.S.2d 280).  A court may order the disclosure of confidential HIV-related information if it is established that there was a “compelling need” for such disclosure (Public Health law § 2785[2][a]).  Compelling need is determined by weighing the need for disclosure against “ ‘the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination’ ” (Doe v. Sutlinger Realty Corp., 96 A.D.3d 898, 899, 947 N.Y.S.2d 153, quoting Public Health Law § 2785[5]).  However, where the court issues an order directing the release of HIV-related information “the court shall enter an order directing that all pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon, be sealed and not made available to any person, except to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal.  Such an order shall further direct that all subsequent proceedings in connection with the application shall be conducted in camera, and, where appropriate to prevent the unauthorized disclosure of confidential HIV related information, that any pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the application or the decision thereon not state the name of the individual concerning whom confidential HIV related information is sought” (Public Health Law § 2785[3]).

Here, the plaintiff affirmatively placed her entire medical history in controversy by alleging that she became “lame and disabled” and suffered “great mental/psychological and physical harm,” to the extent that she was “permanently injured” (see DiLorenzo v. Toledano, 190 A.D.3d 941, 942, 136 N.Y.S.3d 905;  Diamond v. Ross Orthopedic Group, P.C., 41 A.D.3d 768, 768–769, 839 N.Y.S.2d 211).  Thus, the plaintiff waived the physician-patient privilege with respect to her medical history (see Frawley v. City of New York, 221 A.D.3d at 974–975, 202 N.Y.S.3d 135;  Peterson v. Estate of Rozansky, 171 A.D.3d 805, 807, 97 N.Y.S.3d 724).  In relation to the disclosure of HIV-related information, the Supreme Court properly determined that the plaintiff affirmatively placed her HIV status in issue by commencing this action and alleging that she suffered permanent injuries and a total disability as a result of the defendants’ care (see Public Health Law § 2785[5];  Doe v. Sutlinger Realty Corp., 96 A.D.3d 898, 899, 947 N.Y.S.2d 153;  but see Nesbitt v. Advanced Serv. Solutions, 173 A.D.3d 1056, 1057, 100 N.Y.S.3d 877).  However, the order appealed from should have contained the protections outlined in Public Health Law § 2785(3).  Accordingly, we remit the matter to the Supreme Court, Kings County, for the entry of an appropriate order in accordance with Public Health Law § 2785(3).

The Supreme Court also providently exercised its discretion in compelling the plaintiff to provide authorizations for the release of records related to alcohol and drug treatment as well as mental health information since the plaintiff is seeking damages for “great mental/psychological harm” and mental, emotional, and psychological anguish (cf.  Froehlich v. Kimco Realty Corp., 207 A.D.3d 448, 449, 169 N.Y.S.3d 538;  Quinones v. 9 E. 69th St., LLC, 132 A.D.3d 750, 751, 18 N.Y.S.3d 106).

The plaintiff's contention that those branches of the moving defendants’ separate motions which were to compel the plaintiff to provide the subject authorizations should have been denied for failure to comply with 22 NYCRR 202.7(a) is without merit.  In this case, it was apparent that efforts to resolve the issue without the aid of the court would have been futile;  therefore, the alleged failure of the moving defendants to comply with 22 NYCRR 202.7(a) could be excused (see Moran v. Grand Slam Ventures, LLC, 221 A.D.3d 994, 996, 202 N.Y.S.3d 141;  DiPasquale v. Lim, 218 A.D.3d 1182, 1184, 193 N.Y.S.3d 519).

Accordingly, the Supreme Court providently exercised its discretion in granting those branches of the moving defendants’ separate motions which were to compel the plaintiff to provide the subject authorizations and in denying that branch of the plaintiff's cross-motion which was for a protective order.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.