Gill v. Mancino

8 A.D.3d 340, 777 N.Y.S.2d 712, 2004 N.Y. App. Div. LEXIS 7807

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2004
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated May 12, 2003, which denied his motion to dismiss the complaint pursuant to CPLR 3126 for failure to comply with certain discovery demands, or in the alternative, to compel the plaintiffs to provide all outstanding discovery.

Ordered that the order is affirmed, without costs or disbursements.

CPLR 3101 (a) provides for disclosure of “all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” By commencing this action to recover damages for medical malpractice, the plaintiff Robert Gill waived the physician-patient privilege with respect to his relevant past medical history (see Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; McLane v Damiano, 307 AD2d 338 [2003]; DeStrange v Lind, 277 AD2d 344 [2000]). However, a party does not waive the privilege with respect to unrelated illnesses or treatments (see McLane v Damiano, supra; Sadicario v Stylebuilt Accessories, 250 AD2d 830, 831 [1998]). In this case, the defendant failed to establish that the medical records he sought to discover were material and necessary to the defense of this malpractice action (see McLane v Damiano, supra). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant’s motion. S. Miller, J.P., Adams, Cozier and Rivera, JJ., concur.