Koump v. Smith,
Scileppi, J. Chief Judge Fuld and Judges Burke, Breitel and Jasen concur; Judge Bergan concurs in result in a separate memorandum.
This is an action to recover damages for personal injuries. Plaintiff was allegedly injured when the defendant drove his vehicle across the center divider of Route 304 at New City, New York, crashing head-on into plaintiff's vehicle. The complaint alleges, inter alia, that prior to the accident defendant consumed alcoholic beverages; that at the time of the collision the defendant was drunk and unable to control his vehicle, and, that the collision resulted from defendant's intoxicated condition. The answer denies these allegations.
On April 7, 1967 plaintiff's attorneys sent a notice to defendant's attorney pursuant to CPLR 3121 requiring defendant to execute and acknowledge written authorization permitting plaintiff or his attorneys "to obtain and make copies of the records of Nyack Hospital, relating to the physical condition of the above named defendant including the concentration of alcohol in his blood following the accident between the parties, out of which this accident arose, the mental or physical condition of the defendant being in controversy in this action". Defendant's attorney apparently refused to abide by the notice. Instead of defendant's moving for a protective order pursuant to CPLR 3122, it was agreed between the parties that, because of the unprecedented nature of the demand, plaintiff would make an application for a court order directing defendant to comply with the notice.
The only paper submitted in support of the motion was an affidavit by plaintiff's attorney which states in part: "As the Court will see by examining Paragraphs 10, 11 and 14 of the complaint, the plaintiff alleges that the accident was caused, among other things, by the fact that the defendant was driving while intoxicated. The Police Report indicates that this was so and that the Police learned this fact from the Nyack Hospital to which both plaintiff and defendant were taken following the accident."
The relevant parts of the opposing affidavit submitted by defendant's attorney reads as follows:
"That contrary to the plaintiff's attorney's affidavit, the police report lists the apparent condition of the defendant James E. Smith as normal and any other hearsay remarks on the police report not made by the policeman is hearsay and therefore not admissible.
"That whatever hospital records there are concerning the defendant, they are confidential between the hospital and patient or the doctor and patient and thus form a part of privileged communications. "That the defendant in this case has not put his physical condition in controversy within the meaning of Section 3121 of the Civil Practice Law and Rules."
The court at Special Term denied the application without opinion. On appeal, the Appellate Division, by a sharply divided court, affirmed and granted leave to appeal certifying the following question: "Was the order of this court, dated April 22, 1968, properly made?" For the reasons that follow, the question is answered in the affirmative.
The applicable statutes are sections 3101 (subds. [a], [b]) and 3121 of the CPLR. Section 3101 provides that "There shall be full disclosure [by a party] of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof, * * * [but] (b) Upon objection by a party privileged matter shall not be obtainable."
Section 3121 (subd. [a], provides in pertinent part: "After commencement of an action in which the mental or physical condition * * * of a party * * * is in controversy, any party may serve notice on another party to submit to a physical [or] mental * * * examination by a designated physician * * * The notice may require duly executed and acknowledged written authorizations permitting all parties to obtain, and make copies of, the records of specified hospitals relating to such mental or physical condition".
The majority and dissenters at the Appellate Division held that the statute permits a defendant or, in the proper case, a plaintiff to obtain a mental or physical examination of the other party and an inspection of his hospital records. Clearly this holding is correct, for on its face the statute allows a party to obtain an examination and hospital records of any party whose mental or physical condition is in controversy. Disclosure is not a one-way street and surely the Legislature did not intend to favor one class of litigants over another.
The Appellate Division, however, never reached the primary question of whether the defendant's physical condition is in controversy. The majority was of the opinion that all the discovery and disclosure provisions of the CPLR are limited by CPLR 3101 (subd. [b]) which provides that "Upon objection by a party privileged matter shall not be obtainable." "Under these statutes," said the majority, "plaintiff must not only show that defendant's physical condition has been placed in controversy as required by CPLR 3121 (subd. [a]), but he must also show that defendant has either waived his right to object under CPLR 3101 (subd. [b]) or, in the alternative, show that the information sought to be obtained is not privileged (cf. Vehicle and Traffic Law, § 1192, subd. 3)." Having laid down this rule, the court held that plaintiff had failed to sustain the burden of either waiver or nonprivilege and, therefore, did not pass upon the question of whether defendant's physical condition had been placed in controversy. The dissenters apparently found no question of privilege in the case and concluded that disclosure was warranted because defendant's physical condition was in controversy.
The question of whether the doctor-patient privilege obtains when a party's mental or physical condition is in controversy has not received uniform treatment by the lower courts.
Under former section 354 of the Civil Practice Act the doctor-patient privilege could be waived only upon the trial or examination. To avoid the restriction of the statute, many courts adopted local rules which had the effect of forcing a waiver, although in interpreting these rules the courts took the technical position that the privilege was not violated by them. For example, the Appellate Division, Second Department, had a rule that no case involving hospitalization can be placed on the Trial Calendar unless plaintiff has furnished defendant with written authorization to obtain copies of the hospital record. In Kriger v. Holland Furnace Co. (12 A.D.2d 44, 47) the court held that the rule does not prevent plaintiff from invoking privilege, but "as long as she insists on asserting that right, she may not also insist that her case must be advanced for trial". Under ...