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Edmond H. Boctor, Decision Michelle Boctor, and v. Kathleen Czekus

October 17, 2011

EDMOND H. BOCTOR, DECISION MICHELLE BOCTOR, AND PLAINTIFFS,
v.
KATHLEEN CZEKUS, CRETE CARRIER CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

ORDER

By papers filed March 15, 2011, Defendants moved to compel production of executed releases and responses to deposition questions (Doc. No. 16). Following oral argument held on April 12, 2011, decision was reserved regarding the materials obtained as a result of the signed releases (Doc. No. 25). On September 29, 2011, Plaintiff's medical records were submitted to the court for an in camera review. Plaintiff provided the court with a three-ring binder with sixteen numbered tabs covering Plaintiff's medical treatment over a 29 year period.*fn1

New York's physician-patient privilege, applicable in this diversity action, Fed.R.Evid. 501, that ordinarily shields medical records from public disclosure is waived when a party puts his physical condition in issue. N.Y. C.P.L.R. § 3121(a)*fn2 (providing, as relevant, that after commencing action in which the physical condition of a party is in controversy, any party may serve notice on another party to submit to a physical examination by a designated physician, and to duly execute and acknowledge written authorizations permitting all parties to obtain and make copies of the records of specified hospitals relating to such physical condition); Cynthia B. v. New Rochelle Hospital Medical Center, 458 N.E.2d 363, 364-65 (N.Y. 1983) (holding when party moves to compel disclosure of medical records, treating hospital, physician, or other custodian of medical records may request protective order on ground that disclosure might be seriously detrimental to patient's interests regardless of fact that patient, by commencing litigation, waived physician-patient privilege). Nevertheless, a custodian of medical records may seek a protective order limiting the production of medical records to those that are material and relevant to the prosecution or defense of the action. Cynthia B., 458 N.E.2d at 366. New York's Court of Appeals has specifically held that a patient's waiver of the physician-patient privilege should not automatically and necessarily require the disclosure of all of the patient's medical records. Id. at 368. Rather, "the need for discovery must be reconciled with the need to protect a patient from the potential detrimental effects of disclosing [his medical] records [pertaining to conditions other than those at issue in the pending litigation]." Id. (bracketed material added). As such, "a court must strike a balance by weighing these conflicting interests in light of the facts of the particular case before it." Id.

Weighing Plaintiff's right to privacy in his medical records with Defendants' need to prepare a defense to this action, the court has carefully reviewed each document submitted for in camera review. Based on this review, the court finds the following documents shall be provided to the Defendants as material to Plaintiff's claims.

Tab 1 No documents shall be provided.

Tab 2 No documents shall be provided.

Tab 3 No documents shall be provided.

Tab 4 No documents shall be provided.

Tab 5 No documents shall be provided.

Tab 6 Report by Michael Chaskes, MD dated October 3, 2008 (Page 1)

Report by Michael Chaskes. MD dated January 7, 2009 (Pages 1 and 2) Report by Michael Chaskes, MD dated July 14, 2009 (Page 2)

Report by Thomas P. Smith, Jr., MD dated February 15, 2010 (Page 2) Report by Michael Chaskes, MD dated March 12, 2010 (Page 1) Report by Michael Chaskes, MD dated April 20, 2010 (Page 1)

Report by Michael Chaskes, MD dated July 13, 2010 (Page 1)

Report by Michael Chaskes, MD dated November 16, ...


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