Key Takeaway
Court limits medical record discovery in slip and fall case to injuries actually claimed, rejecting 20+ years of disability records for unrelated conditions.
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 ). 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 ), 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 ; 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.
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