McGaw, Alventosa & Zajac, Jericho (Dawn C. DeSimone of counsel), for appellants.
Fortunato & Fortunato, PLLC, Brooklyn (Annamarie Fortunato of counsel), for respondents.
Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Gische, JJ.
Order, Supreme Court, Bronx County (Laura Douglas, J.), entered on or about February 1, 2013, which, to the extent appealed from as limited by the briefs, denied defendants' motion pursuant to CPLR 3126 to strike the complaint upon plaintiffs' failure to provide requested HIPAA-compliant authorizations for the release of medical records, affirmed, without costs.
This action was brought to recover damages for a torn rotator cuff, a fractured ankle and other orthopedic injuries sustained by plaintiff James Gumbs. This appeal involves defendants' discovery notice for the production of authorizations for the release of the records of Gumbs's cardiologist as well as his primary care physician. Defendants moved for an order striking the complaint upon plaintiffs' refusal to provide the authorizations. Counsel's affirmation was accompanied by copies of the pleadings, bills of particulars, defendants' discovery notice and plaintiffs' response. The motion was made solely on the bare-bones assertion that "[p]laintiff certainly has placed his medical condition in issue and has also placed his ability to work in the future at issue as well as his life expectancy." Plaintiffs opposed the motion on grounds that included the physician-patient privilege. The court below denied the motion, finding that defendants have not shown that the records they seek are related to the claimed injuries. We affirm.
Discovery determinations rest with the sound discretion of the motion court (Andon v 302-304 Mott St. Assoc., 94 N.Y.2d 740, 745 ). This Court is nonetheless vested with a corresponding power to substitute its own discretion for that of the motion court (id.). Notwithstanding our own discretion, "deference is afforded to the trial court's discretionary determinations regarding disclosure" (Don Buchwald & Assoc. v Marber-Rich, 305 A.D.2d 338, 338 [1st Dept 2003][internal quotation marks omitted]). Unlike the dissent, we find no abuse of the court's discretion given the paucity of support for the motion in the first instance. Specifically, defendants' argument regarding the relevance of Gumbs's medical history as set forth in his deposition was improperly made for the first time in their reply papers (see e.g. Ambac Assur. Corp. v DLJ Mtge. Capital, Inc., 92 A.D.3d 451, 452 [1st Dept 2012]). The purpose of reply papers "is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" (id. [internal quotation marks omitted]). This impropriety deprived plaintiffs of an opportunity to respond to the argument. Accordingly, the denial of defendants' motion was reasonable and supported by law.
We, otherwise, find no occasion to substitute our own discretion for that of the motion court. Gumbs's waiver of his physician-patient privilege is limited in scope to "those conditions affirmatively placed in controversy" (Felix v Lawrence Hosp. Ctr., 100 A.D.3d 470, 471 [1st Dept 2012]). Gumbs did not place his entire medical condition in controversy by suing to recover damages for orthopedic injuries (see e.g. Schiavone v Keyspan Energy Delivery NYC, 89 A.D.3d 916, 916-917 [2d Dept 2011]).
All concur except Freedman and Gische, JJ. who dissent in a memorandum by Gische, J. as follows:
GISCHE, J. (dissenting)
I respectfully dissent and would reverse the order denying defendants' motion and would direct the production of the requested discovery because plaintiff, by claiming that his enumerated injuries have resulted in his permanent inability to work and permanent or long lasting loss of enjoyment of life, has placed his general health and medical history at issue.
James Gumbs was supervising work at a construction site when the accident occurred. He claims to have sustained a fractured ankle, bilateral shoulder injuries and a knee injury, all requiring surgeries to correct. In his complaint he seeks damages for both past and future loss of earnings. In his various supplemental bills of particulars, plaintiff claims that his injuries are permanent. In addition to compensation for pain, deformity, disability, stiffness, tenderness, tingling sensation, weakness and limitation, he seeks further damages for anxiety, depression and the loss of enjoyment of life, including an inability to enjoy the normal fruits of his "social, economic and educational" activities. His wife has asserted a derivative claim for both past and future loss of services and consortium.
Plaintiff was deposed and testified that he was prescribed Percocet for pain associated with the injuries caused by the accident. Upon further inquiry, he divulged that he was first prescribed Percocet in 1999 in connection with a gunshot wound he suffered at that time. The wound was to his abdomen. Although he did not lose any organs as a result of wound, he did undergo "multiple surgeries, " including surgeries to his small and large intestines. Percocet was prescribed by his personal physician (Dr. Fields) who still treats him and continues to issue refills for that prescription. According to plaintiff, he takes Percocet for pain associated with that old injury as needed, which is approximately once a month.
Plaintiff also testified at his deposition that doctors discovered a heart condition when he went for routine pre-op screening in 2010 to correct the ankle and shoulder injuries that are the subject of this lawsuit. He is not claiming that the heart condition is related to the accident. The condition appears to have been preexisting, but undiagnosed. Plaintiff stated that he sees Dr. Tims, his cardiologist, every four-to-six months to monitor this condition, which plaintiff describes as his having a "blood vessel [that is] weak" or a weak heart muscle. Plaintiff also stated that Dr. Tims prescribed medication to "strengthen up the muscle" and another medicine to lower his cholesterol. Plaintiff did not know the name of the heart strengthening medicine he is taking, how severe this cardiac problem is or whether he also suffers from high blood pressure.
Plaintiff, now age 60, was asked questions about whether he had any retirement plans. He answered that until he was injured in this accident, he had no intention of retiring and had expected to work until he "[felt] like quitting" because he was "very active". Before this supervisory position, plaintiff had ...