Limitations on medical record discovery

Spencer v Willard J. Price Assoc., LLC, 2017 NY Slip Op 08456 (1st Dept. 2017)

“In this slip and fall action, plaintiff seeks to recover for orthopedic injuries allegedly sustained to her knees, neck, back and shoulder. Under the circumstances, the motion court did not improvidently exercise its discretion in denying defendants’ motion to compel discovery of over 20 years of disability records relating to other conditions (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573 [1st Dept 2014]). By bringing suit to recover for her physical injuries, plaintiff waived the physician-patient privilege as to all medical records relating “to those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]), but the court reasonably found that she did not place in issue her entire medical condition, including her diabetic condition and high blood pressure (see Kenneh v Jey Livery Serv., 131 AD3d 902 [1st Dept 2015]; Gumbs at 574).”

My question whenever I read these cases is whether the BP pleaded loss of enjoyment of life, which implicitly allows a fishing expedition into the person’s medical history.  I pulled the pertinent part of the BP and it says as follows:

“The plaintiff may permanently suffer from the aforesaid injuries from its effects upon his (sic) nervous system and may limit her activities in his (sic) employment and her life.  Plaintiff may be restricted in her normal life and activities and may permanently require medical and neurological care and attention.”

Sneaky.

Discovery of the claims file – some limitations

Celani v Allstate Indem. Co., 2017 NY Slip Op 07799 (4th Dept. 2017)

(1) Contrary to defendant’s contention, the court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” (Calkins v Perry, 168 AD2d 999, 999 [4th Dept 1990]; see Beaumont v Smyth, 306 AD2d 921, 921 [4th Dept 2003]). Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.”

(2)We agree with defendant, however, that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable (see Lalka v ACA Ins. Co., 128 AD3d 1508, 1508-1509 [4th Dept 2015]), documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared

** Note, this differs from the case from the First Department where the attorney was acting in a mixed role of fact finder and lawyer **

(3) We conclude that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989]; see Quinones v 9 E. 69th St., LLC, 132 AD3d 750, 750 [2d Dept 2015]). Inasmuch as the employee of defendant who made the ultimate decision to disclaim testified that the manual did not contain a definition of “resident,” the court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action

** The claims investigation manual is possibly privileged.

Was there a basis for detailed disclosure?

Maiga Prods. Corp. v United Servs. Auto. Assn., 2017 NY Slip Op 51148(U)

Interestingly, there was no discussion in this case relative to an offer of proof regarding whether what I presume is whether corporate disclosure was established.  The following is noted:  “Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and CPLR 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.

Discovery granted/ Owner hailed into an EBT

Dana Chiropractic, P.C. v USAA Cas. Ins. Co., 2017 NY Slip Op 50944(U)(App. Term 2d Dept. 2017)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).”

(2) “Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). ”

A sufficient showing was made warranting the owner to come in for an EBT

 

Special Referee cannot determine BP issues

Flores v New York City Hous. Auth.,

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading (see id. at 335-336), the present dispute over the contents of the plaintiff’s bill of particulars is not “part of any disclosure procedure” (CPLR 3104[a]) that CPLR 3104 authorizes a referee to supervise”

This one is interesting.

Hello Mrs. Collins

State Farm Mut. Auto. Ins. Co. v RLC Med., P.C., 2017 NY Slip Op 03979 (2d Dept. 2017)

(1) “The plaintiff insurance company commenced this action against, among others, the defendant Estate of Ronald L.L. Collins, seeking a judgment declaring, inter alia, that the plaintiff has no obligation to pay no-fault claims for medical services purportedly rendered by Collins.”

(2) “It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” (D’Alessandro v Nassau Health Care Corp., 137 AD3d at 1196, quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, [*2]421). Here, the plaintiff made no showing that conducting the deposition of the administrator will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims”

I am unsure what the administrator had to offer.  Since it is not an e-filed case and I am not going to Mineola to pull the file, I will never know.

 

Correct Note of issue asserting discovery is outstanding not basis for striking Note

Suarez v Shapiro Family Realty Assoc., LLC, 2017 NY Slip Op 02914

(1) “Under the circumstances, where plaintiff’s certificate of readiness contained no incorrect material representations, the court properly refused to vacate the note of issue (cf. 22 NYCRR 202.21[e]). However, as plaintiff acknowledged in the note of issue and certificate of readiness, discovery was still outstanding.”

(2) “It is noted that granting Shapiro’s discovery request as to Duane Reade will not prejudice plaintiff, since the matter remains on the trial calendar”

This is how they do business in Supreme Queens.  I am not a fan since a Note of Issue should not be filed until discovery is completed.  OCA should step up to the plate on this one and not give Courts the power to force note of issues to be filed when discovery is outstanding.

Post note of issue discovery granted

Cuprill v Citywide Towing & Auto Repair Servs., 2017 NY Slip Op 02729 (1st Dept. 2017)

It is such a murky area – when is post note of issue discovery appropriate?

“Contrary to plaintiff’s argument, defendants did not seek, and the motion court did not order, vacatur of the note of issue. Trial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced.”

Ralph Medical modified

Acupuncture Approach, P.C. v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 50340(U)(App. Term 1st Dept. 2017)

“We find no abuse of discretion in the grant of defendant’s motion to compel plaintiff to produce witnesses for deposition. Defendant preserved its excessive treatment and fee schedule defenses in the NF-10 denial of claim forms and demonstrated that the discovery sought was material and necessary to the defense of the action (see Megacure Acupuncture, P.C. v Lancer Ins. Co., 41 Misc 3d 139[A], 2013 NY Slip Op 51994[U] [App Term, 2d, 11th & 13th Jud. Dists 2013]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d, 11th & 13th Jud. Dists 2012]). Unlike the situation in Ralph Med. Diagnostics, PC v Mercury Cas. Co. (43 Misc 3d 65 [2014]), the discovery sought herein is neither unreasonable nor duplicative of information already provided.”

**It appears the court backed off from Ralph Medical (which makes sense because once you place a case in court,  you are stuck with all of CPLR 3101).  The analogue to ralph (Arnica v. Interboro), the deposition demand was struck despite the provider not providing any discovery.  Clearly, someone woke up here.

Dismissal for failure to comply with one discovery order

Renelique v Lancer Ins. Co., 2016 NY Slip Op 51596(U)(App. Term 2d Dept. 2016)

(1) By order entered March 31, 2014, the Civil Court granted defendant’s unopposed motion and directed plaintiff to “provide discovery responses to outstanding discovery demands within 60 days.”

(2) When plaintiff’s time to respond had passed, defendant moved to dismiss the complaint, pursuant to CPLR 3126, on the ground that plaintiff had failed to comply with the March 31, 2014 order. On September 9, 2014, plaintiff served its opposition to the motion along with written responses to defendant’s discovery demands. Plaintiff appeals from an order of the Civil Court, entered December 11, 2014, which, among other things, granted defendant’s motion and dismissed the complaint.

(3) “Although dismissing a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). In the case at bar, that plaintiff’s conduct was willful and contumacious can be inferred from its refusal to adequately comply with discovery requests, even after being directed to do so by court order, as well as from the absence of a reasonable excuse for its failure to comply”

The Plaintiff missed one order without any conditional language.  Civil Court dismissed the complaint -which they wouldn’t even do in Federal Court – and the Appellate Term affirmed despite belated compliance.

Unless I am missing something, the Appellate Term plainly got this wrong.

Here is PI case from the Second Department (2 weeks subsequent) that required more than one ignored order:

Bruno v Flip Cab Corp., 2016 NY Slip Op 07617 (2d Dept. 2016)

“Here, Livoti twice failed to appear for depositions in violation of two court orders and never responded to a demand for a bill of particulars. Livoti’s failures to comply with court-ordered discovery coupled with her failure to provide any excuse therefor supports an inference that her conduct was willful and contumacious”