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).

Although plaintiff is not required to lay bare his or her entire medical and mental health history, there has been extensive judicial examination of the extent to which plaintiff has waived the privilege, especially where he or she has interposed not only claims for the specific injuries and sequelae directly caused by the accident, but also broader claims for items such as loss of enjoyment of life and lost earnings. The bill of particulars is a pivotal document in laying out the injuries and damages claimed in a personal injury action. While it is important to fully describe the injuries, sequelae, and other items of damages sustained as a result of the occurrence, there is a danger to including overly broad boiler plate language. Pleading "loss of enjoyment of life" in pleadings and bills of particulars has been an often contentious element in the Second Department to the extent it may compel plaintiffs to provide discovery with respect to pre-existing conditions or prior injuries unrelated to the injuries in the action. There is a significant split between the First and Second Departments of the Appellate Division as to whether such claims will result in an expanded waiver of the physician-patient privilege and allow defendants to obtain medical records with respect to treatment for prior unrelated injuries or conditions not directly at issue in the lawsuit.

A claim for loss of enjoyment of life has been held to be only a factor in assessing pain and suffering and not a separate recoverable item of damages. The Court of Appeals clearly stated in Nussbaum v. Gibstein, 73 N.Y.2d 912, 914 (1989):

As we hold in a companion case (see, McDougald v. Garber, 73 N.Y.2d 246, …), loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering.

Nonetheless, specifically asserting a claim for loss of enjoyment of life in the bill of particulars, even though it is already an element of pain and suffering, increases the potential for an increased waiver of patient-physician privilege in the Second Department for plaintiffs with prior injuries or pre-existing medical conditions.

In Brito v. Gomez, 168 A.D.3d 1 (1st Dept. 2018), the First Department extensively examined the decisional differences between the First and Second Departments in interpreting the scope of the waiver of the privilege with respect to unrelated prior injuries where broad-based claims of loss of enjoyment of life have been interposed. As will be hereinafter discussed, this 3-2 decision resulted in an appeal to the Court of Appeals which issued a decision this month.

The First Department has construed the waiver of the physician-patient privilege narrowly and rejected defense contentions that claims for loss of enjoyment of life should open the flood gates to plaintiff's medical history. For example, in Gumbs v. Flushing Town Ctr. III, L.P., 114 A.D.3d 573 (1st Dept. 2014), plaintiff sought to recover damages for a torn rotator cuff and other orthopedic injuries. He included claims for lost earnings and loss of enjoyment of life. As a result, defendants demanded authorizations for his cardiology and primary care records as relevant to those claims. When plaintiff refused, motion practice ensued. The court held, with two dissents, that plaintiff's waiver of his physician-patient privilege was limited in scope to "those conditions affirmatively placed in controversy." The court found that plaintiff did not place his entire medical condition in controversy by suing to recover damages for his orthopedic injuries. In dissent, Justice Gische opined, consistent with the expansive outlook of the Second Department, that asserting claims for loss of future earnings and loss of enjoyment of life based upon permanency were sufficient to show that plaintiff had put his overall physical condition at issue in this action.

Similarly, in Spencer v. Willard J. Price Assoc., 155 A.D.3d 592 (1st Dept. 2017), the First Department held that plaintiff's diabetic condition and high blood pressure were not placed in controversy where she sought to recover for orthopedic injuries. As such, plaintiff did not waive the physician-patient privilege as to those medical records. In Rohan v. Turner Const. Co., 158 A.D.3d 436 (1st Dept. 2018), the First Department rejected defense contentions that claims for loss of enjoyment of life in pending litigation opened the door to disclosure of medical records pertaining to treatment for a broken leg almost 30 years earlier. The court held that defendants failed to demonstrate that these orthopedic injuries, relating to a 1987 automobile accident, were relevant to his traumatic brain injury claims in the pending construction site accident litigation.

In decisions very much to the contrary, the Appellate Division, Second Department, has found that broad and often boilerplate language alleging claims such as "loss of enjoyment of life" may result in a waiver of the physician-patient privilege with respect to prior injuries or pre-existing conditions. As such, a plaintiff may place in controversy his or her entire medical condition if sweeping allegations of physical injury and mental anguish are made. For example, in O'Rourke v. Chew, 84 A.D.3d. 1193 (2d Dept. 2011), defendants were allowed authorizations for medical treatment for a psychological disorder where the pleadings asserted such broad allegations. In Greco v. Wellington Leasing Ltd. Partnership,144 A.D.3d 981 (2d Dept. 2016), plaintiff claimed injuries to her shoulder and hip. The motion court denied defendant's demand for her psychological records, finding no indication that she was claiming mental anguish. However, the Second Department disagreed and reversed the lower court. It found that plaintiff affirmatively placed her entire medical condition in controversy "through broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries, which included impairment of her nervous system and requirement of neurological care … ." As such, her previous psychiatric conditions and history of treatment for substance were found to be both material and necessary on the issue of damages. See also Bravo v. Vargas, 113 A.D.3d 577 (2d Dept. 2014), where plaintiff was found to have affirmatively placed her entire medical condition in controversy, including pre-existing conditions, through her broad allegations of physical and mental injuries as well as loss of enjoyment of life. So too, in Kakharov v. Archer, 166 A.D.3d 746 (2d Dept. 2018), defendants were allowed to obtain records on prior medical conditions where plaintiff claimed loss of enjoyment of life.

In Orlando v. Richmond Precast, 53 A.D.3d 534 (2d Dept. 2008), plaintiff sustained a mild cervical injury in a prior accident. The bill of particulars in the pending action claimed no cervical injury. Nonetheless, the Appellate Division, reversing the motion court, found defendants were entitled to authorizations for workers' compensation and medical records from the earlier occurrence which was approximately six years prior to the subject accident, to ascertain how the nature and severity of the prior injuries could impact her claim for loss of enjoyment of life. In Vodoff v. Mehmood, 92 A.D.3d 773 (2d Dept. 2012), defendants were permitted access to plaintiff's medical records of a preexisting diabetes condition as relevant to claims for loss of enjoyment of life.

It should be noted that the First Department, as well as the Second, will allow discovery on pre-existing conditions where there is a claim that an occurrence aggravated or exacerbated underlying conditions that were asymptomatic before the accident. McGlone v. Port Auth. of New York and New Jersey, 90 A.D.3d 479 (1st Dept. 2011); Nesbitt v. Advanced Serv. Sols., 173 A.D.3d 1056 (2d Dept. 2019).

In its recent decision, Brito v. Gomez, 168 A.D.3d 1 (1st Dept. 2018), the First Department examined its differences with the Second Department on issues of medical disclosure of unrelated preexisting medical conditions where claims of loss of enjoyment of life and broad allegations of disabilities were interposed. Because of a factual dispute and a split decision of 3-2, there was a further appeal to the Court of Appeals, which rendered a very narrow finding without addressing the broader division between the Departments.

In Brito, plaintiff sought damages for injuries to her cervical spine, lumbar spine and left shoulder. She had previously injured her knees, which she testified affected her ability to wear heels, as did her cervical injuries. She claimed loss of enjoyment of life. Defendants sought authorizations for the knee treatment. On appeal, in a 3-2 decision, the First Department majority determined that plaintiff had not placed her prior knee injuries in controversy, either in the bill of particulars or at deposition, nor did she claim exacerbation. Justice Singh, writing for the majority, summarized the court's philosophy, stating:

We are asked in this appeal to decide whether a litigant in a personal injury action who makes a claim for lost earnings and loss of enjoyment of life waives the physician-patient privilege with respect to prior injuries not raised in the lawsuit. Based on our settled precedent, we find the privilege is waived only for injuries affirmatively placed in controversy.

Significantly, the First Department clearly rejected a claim of loss of enjoyment of life alone as providing a basis for records of a prior injury. It held: "Nor did plaintiff affirmatively place the physical condition of her knees at issue by asserting loss of enjoyment of life." Thus, the court reiterated its disagreement with the case law in the Second Department where allegations of loss of enjoyment of life are an open invitation to obtain records pertaining to prior injuries. Justice Singh expressed the view of the majority that Second Department precedent could not be reconciled with Court of Appeals rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy.

Although Brito had two dissents on the issue of the exchange of the prior knee treatment, the dissenting justices, in an opinion by Justice Friedman, framed their issue narrowly, stating:

To be sure, as previously noted, our more recent decisions have clarified that, unlike the Second Department, we do not regard generalized allegations of loss of enjoyment of life or of the ability to work as opening the door to a plaintiff's entire medical history. We have never held, however, that a defendant is not entitled to disclosure of medical records pertaining to a preexisting condition that may have caused, independent of the injuries attributed to the defendant, the particular functional deficits or pain for which recovery is sought.

A decision on appeal was rendered this month. In a very concise decision responsive to the narrowly framed issue raised by the dissent, the Court of Appeals (2019 N.Y. Slip Op. 06452), recognized that plaintiff's claims of difficulties walking and standing placed her knees into controversy. Thus "[u]nder the particular circumstances of this case, plaintiff waived the physician-patient privilege with respect to the prior treatment of her knees … ."

While it reversed the decision of the Appellate Division on the narrow question raised, it is interesting to note that the Court of Appeals did not comment on the broader issue of allegations of loss of enjoyment of life. It framed a response strictly limited to the issue on appeal. It is impossible to speculate whether this decision approved the restricted waiver of the physician-patient privilege endorsed by the First Department or merely responded to a very limited question. Thus, the differences between the two Departments remain.

The First Department's examination of the scope of decisional law in Brito makes it abundantly clear that plaintiff's counsel should be wary of making unnecessary claims of loss of enjoyment of life or vague but comprehensive assertions of damage to entire body systems. These may lead to an intrusive and possibly unnecessary incursion into a plaintiff's medical history, especially if the plaintiff has a complicated medical history which should not be relevant to the specific injuries in the case. To do so, especially in the Second Department, may make plaintiff's medical history an open book.

Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner is an attorney with the firm.