For the reasons set forth below, the State’s motion pursuant to CPLR
§ 3101, 3122, 3124 and § 3126 for an order: (1) dismissing the Claim
for Claimants’ failure to disclose information which ought to have been
disclosed is denied; (2) precluding Claimants from offering evidence on the
issue of liability for failing to provide relevant medical authorizations is
denied; and (3) compelling Claimants to produce authorizations permitting
Defendant to obtain Ms. Maurer’s medical records from Dr. Jaber, Dr.
Behling and Good Samaritan Hospital and reserving Defendant’s right to a
further deposition of Ms. Maurer upon receipt and review of the records is
granted in part and denied in part.
The Amended Claim, which was filed with the Clerk of the Court on April 28,
, alleges medical malpractice in the
prenatal care and treatment of Claimant, Lisa Maurer, from March 23 through
March 26, 2003 while she was a patient at Stony Brook University Hospital. Ms.
Maurer thereafter had a follow-up appointment with her treating obstetrician,
Dr. Andrew Elimian, on March 28, 2003. On March 29, 2003, Ms. Maurer
prematurely delivered her baby, Jacob, at home after approximately 28 weeks of
pregnancy. Both Claimants were then taken by ambulance to Good Samaritan
Hospital. It is asserted that the alleged malpractice caused Jacob’s
significant permanent injuries.
Defendant is seeking the medical records of (1) Dr. Jaber, Ms. Maurer’s
family physician, who treated her prenatally and “with whom she discussed
the facts leading up to the delivery of [Jacob]” (Affirmation in Support
of Donna R. Silverglad [hereinafter, Silverglad Affirmation], ¶ 6); (2) Dr.
Behling, Ms. Maurer’s psychiatrist, who treated her prenatally and
“with whom she discussed the facts leading up to the delivery of
[Jacob]” (id.); and (3) Good Samaritan Hospital, where Ms. Maurer
“delivered the placenta for the birth of . . . Jacob”
Defense counsel avers that a deposition of Ms. Maurer was conducted on December
11 and 12, 2007 (id., ¶ 10); that, following the deposition, a
Notice for Discovery and Inspection was served on December 13, 2007 (id.,
¶ 11; see Ex. K attached to Motion) and a second Notice was served
on December 26, 2007 (id.; see Ex. L attached to Motion); that
Claimants responded to the discovery request on March 31, 2008 (see Ex. M
attached to Motion); and that counsel rejected the responses as inadequate on
April 2, 2008 (Silverglad Affirmation, ¶ 12; see Ex. N attached to
On April 25, 2008, the Court held a telephone conference with counsel for the
parties. Following the conference, the Court issued a Daily Report stating,
inter alia, that Claimant would provide Defendant with some of the
requested authorizations; that one authorization was at issue and the Court
allowed Defendant to move to compel production of those records (see Ex.
A attached to Motion). On July 21, 2008, Claimants provided responses with
regard to the April 25, 2008 conference and advised they were providing an
authorization to obtain Dr. Jaber’s prenatal records for Ms. Maurer (e.g.,
through March 29, 2003, the day Jacob was born) and would not provide an
authorization for the Good Samaritan Hospital records of Ms. Maurer regarding
the delivery of the placenta (see Ex. Q to Motion). Ms. Maurer also
submitted to Defense counsel a stipulation whereby she seeks to withdraw
“any individual claims for pain and suffering, emotional injuries and
physical injuries” (id.).
Defense counsel asserts that, pursuant to CPLR § 3101, there shall be full
disclosure of all matter material and necessary in the prosecution or defense of
an action, regardless of the burden of proof. She further asserts that Claimant
Lisa Maurer has placed her medical condition in issue by bringing this Claim
(id., ¶ 18).
In opposition to the Motion, Claimants’ counsel asserts that Defendant is
seeking privileged medical information pertaining to “the alleged
emotional and physical injuries [Ms. Maurer] sustained as a result of the
medical malpractice” (Affirmation in Opposition of Steven M. Fink
[hereinafter, Fink Affirmation], ¶ 7). Mr. Fink avers that Claimants have
“no medical support or evidence; no expert or expert testimony; no medical
literature and no desire to pursue a claim for pain and suffering and for
emotional and physical injuries on behalf of [Ms. Maurer] and [C]laimants are
withdrawing such claims” (Fink Affirmation, ¶ 8). Counsel further
states that he has sent a stipulation of discontinuance regarding this portion
of the Claim to Defense Counsel and she has refused to sign it (id.,
Claimants’ counsel asserts that Defendant is not entitled to access Ms.
Maurer’s postnatal medical records maintained by Dr. Jaber as Ms. Maurer
has withdrawn her cause of action for physical and emotional injuries
(id., ¶ 13). In addition, he contends that the medical records of
Dr. Behling relating to Ms. Maurer are privileged, confidential and irrelevant
to this matter (id., ¶¶ 15, 17).
Claimants have submitted affirmations from both Dr. Jaber and Dr. Behling
stating that their records relating to Ms. Maurer are irrelevant to the instant
matter (see Exs. C & D attached to Fink Affirmation).
First, the Court will address the issue of Ms. Maurer’s discontinuance of
her cause of action for pain and suffering and physical and emotional injuries.
As pertinent here, CPLR 3217(a)(2) provides that a party may discontinue a cause
of action without an order by filing with the Clerk of the Court, before the
case has been submitted to the Court, a stipulation in writing signed by the
attorneys of record for all parties. This, Ms. Maurer has attempted to do and
Defense Counsel has declined to execute the stipulation (Silverglad Affirmation,
CPLR 3217(b) provides that the only other way a cause of action can be
discontinued is by Court order upon terms and conditions the Court deems
The Court finds that Ms. Maurer wishes to withdraw her cause of action for pain
and suffering and physical and emotional injuries. Her counsel asserts that
Claimants have no medical support or evidence nor expert testimony to establish
this cause of action (Fink Affirmation, ¶ 8). Thus, the Court hereby
grants Claimants’ request to discontinue this cause of action and it is
deemed discontinued with prejudice.
At this juncture, then, the infant’s mother, Ms. Maurer, remains a party
to the action in a representative capacity and individually insofar as she
asserts a derivative cause of action for loss of services and out-of-pocket
expenses. Thus, her physical, emotional and mental conditions no longer are
directly in controversy and, accordingly, she has not waived the
physician-patient privilege regarding her medical history (Lamy v Pierre,
31 AD3d 613 [2d Dept 2006]; Scipio v Upsell, 1 AD3d 500 [2d Dept 2003];
Scharlack v Richmond Mem. Hosp., 102 AD2d 886, 888 [2d Dept 1984]).
The Court finds, however, that Defendant has established that the medical
records of Ms. Maurer pertaining to the time period Jacob “was in
utero, during which time there could be no severance of the infant’s
prenatal history from the mother’s medical history” are material and
necessary to its defense of this Claim and the Court concludes Defendant is
entitled to them. (Scharlack v Richmond Mem. Hosp., 102 AD2d 886,
supra at 888; see Lamy v Pierre, 31 AD3d 613, supra;
Scipio v Upsell, 1 AD3d 500, supra). Claimants assert, and
Defendant agrees, that an authorization for Dr. Jaber’s medical records
relating to Ms. Maurer up until the date of Jacob’s birth already has been
provided (Fink Affirmation, ¶¶ 12-13; Silverglad Affirmation, ¶
16). Any of Dr. Jaber’s records after Jacob’s birth that pertain to
the period when Jacob was in utero also shall be made available to
Defendant, and Defendant’s motion to compel production of those records is
The Court now turns to Defendant’s request to compel the production of
Dr. Behling’s medical records regarding Ms. Maurer. Ms. Maurer has not
placed her psychiatric condition in issue so as to effect a waiver of the
physician-patient privilege (Napoli v Crovello, 49 AD3d 699 [2d Dept
2008]). However, as stated above, any medical records pertaining to the time
period Jacob was in utero shall be made available to Defendant, and the
motion to compel these records is granted.
Finally, the Court will address that portion of the State’s motion which
seeks to compel production of the medical records of Good Samaritan Hospital
regarding Ms. Maurer’s delivery of the placenta after Jacob’s birth.
The redacted affirmation of Defendant’s expert doctor in the field of
Obstetrics and Gynecology states with specificity that Ms. Maurer’s
delivery records “must be reviewed in order to identify underlying
pathology that may have caused and/or contributed to the premature birth and the
subsequent injuries claimed herein” (Ex. S attached to Motion papers,
). Further, the doctor asserts that
the “records would reveal any factors contributing to premature
, ¶ 4). As the affirmation of Defendant’s
medical expert established that Ms. Maurer’s medical records relating to
the delivery of the placenta are material and necessary to the defense of this
action, the motion to compel is granted (see Lamy v Pierre
AD3d 613, supra
As set forth above, the State’s motion to compel production of
authorizations for the documents is granted in part and denied in part.
Claimants are directed to provide authorizations for the documents as set forth
above within thirty (30) days of the date of filing of this Decision and Order.
After receipt and review of the documents, Defendant may conduct a further
deposition of Ms. Maurer. The remainder of the State’s motion is denied.
Claimants’ request to discontinue that portion of Ms. Maurer’s claim
that asserts a cause of action for pain and suffering and physical and emotional
injuries is granted pursuant to CPLR 3217(b).