Robert S. Kelner and Gail S. Kelner
In a personal injury or medical malpractice action, a plaintiff commencing such an action has waived the physician-patient privilege to the extent that his or her physical or mental condition is affirmatively placed into controversy. In other words, defendants are entitled to authorizations to obtain the records for treatment for injuries sustained. This is in accordance with CPLR §3101(a) which provides: “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action … .”
Plaintiff must disclose medical records which are “material and relevant” to the injuries placed at issue. The Court of Appeals has established that “[b]y bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the doctor-patient privilege.” Koump v. Smith, 25 N.Y.2d 287 (1969); Dillenbeck v. Hess, 73 N.Y.2d 278 (1989).
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