We see here an interesting case where a defendant is forced to undergo a somewhat invasive test. The Court was steadfast in its holding in Welter v Feigenbaum , 2010 NY Slip Op 00012 (1st Dept 2010) that a test ordered during litigation is exempt from the 3121 privilege. This is a very interesting case when dealing with certain issues involving no-fault’s big sister, 5102(d) litigation.
“A plaintiff, in an action for negligent transmittal of genital herpes simplex II, may demand that the defendant submit to a blood test to determine if the latter indeed has the virus (see CPLR 3121). Since the test was ordered in conjunction with the litigation, it is not subject to the physician-patient privilege (see Connors, McKinney’s CPLR Practice Commentary C3121:2). Even were the privilege to apply, defendant waived it by asserting the affirmative defense that he was asymptomatic (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]).”
