RAMSEY v. NEW YORK UNIVERSITY HOSPITAL CENTER

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Supreme Court, Appellate Division, First Department, New York.

Gloria Chandler RAMSEY, Plaintiff-Respondent, v. NEW YORK UNIVERSITY HOSPITAL CENTER, et al., Defendants-Appellants.

Decided: January 06, 2005

MARLOW, J.P., WILLIAMS, GONZALEZ, SWEENY, CATTERSON, JJ. Kirkpatrick & Lockhart LLP, New York (David R. Marshall of counsel), for appellants. The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for respondent.

Orders, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about February 13, 2004 and June 9, 2004, which, in an action for employment discrimination based on disability and age, granted plaintiff's motions for protective orders quashing defendants' subpoena to take the deposition of plaintiff's treating psychiatrist, and directed that defendants' psychiatrist perform his psychiatric evaluation of plaintiff in the presence of her attorney, unanimously affirmed, without costs.

 Defendants seek the deposition of plaintiff's treating psychiatrist, who has not yet been designated an expert witness, in order to clarify the meaning of certain handwritten notes he made of conversations he had with plaintiff's supervisor, a defendant herein, before plaintiff's termination.   Apparently, the notes were included among medical records that were delivered to defendants in the course of disclosure.   A protective order against this deposition was properly granted since plaintiff's psychiatrist's testimony is not the only means of discovering the tenor of the conversations constituting the subject matter of the notes.   It is not the norm to seek the deposition of a treating physician, and it should not generally be directed unless necessary to prove a fact unrelated to diagnosis and treatment (cf. Schroder v. Consolidated Edison Co., 249 A.D.2d 69, 670 N.Y.S.2d 856 [1998];  Moore v. Columbia Presbyterian Hosp., N.Y.L.J., Sept. 2, 1999, at 25).   Concerning defendants' psychiatric evaluation of plaintiff, a party to a civil action is generally entitled to have his or her attorney present during a physical examination conducted at its opponent's demand by its physician, provided that the attorney does not unduly interfere with the examination (see Jakubowski v. Lengen, 86 A.D.2d 398, 450 N.Y.S.2d 612 [1982] ).   We see no reason why the same rule should not apply to a psychiatric evaluation (cf. Matter of Alexander L., 60 N.Y.2d 329, 469 N.Y.S.2d 626, 457 N.E.2d 731 [1983] ).