New Yorkers generally enjoy a privacy right, embodied in the physician-patient privilege set forth in CPLR 4504(a), preventing disclosure of their sensitive medical information. This privilege provides that, "[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." Supplementing this right against disclosure is the federal Health Insurance Portability and Accountability Act (HIPAA), which bars disclosure of a person's medical information except in specified circumstances or with the person's authorization, as recognized by the Court of Appeals in Arons v. Jutkowitz, 9 N.Y.3d 393, 413-14 (2007).

However, the court has cautioned that the right against disclosure granted by the privilege and HIPAA may be waived when the person commences a personal injury action in which the person's "mental or physical condition is affirmatively put in issue." Koump v. Smith, 25 N.Y.2d 287, 294 (1969); Arons, 9 N.Y.3d at 409, citing Koump. As cogently stated by Judge John Scileppi in his opinion for the Court in Koump: "To uphold the privilege would allow a party to use it as a sword rather than a shield. A party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition." Koump, 25 N.Y.2d at 294. When a waiver has been so affected, the plaintiff "may not insulate from disclosure material necessary to the defense concerning that condition." Hoenig v. Westphal, 52 N.Y.2d 605, 610 (1981).

Notably, the New York courts have uniformly held post-Koump a plaintiff does not necessarily place his or her entire medical condition in issue as a consequence of commencing a personal injury action. Rather, discovery is properly limited to only those medical records relating to the condition(s) "affirmatively" placed in issue by the plaintiff in the action. See, e.g., Spencer v. Willard J. Price Assoc., 155 A.D.3d 592 (1st Dept. 2017); Iseman v. Delmar Med.-Dental Bldg., 113 A.D.2d 276, 279 (3d Dept. 1985).

What allegations by a plaintiff will "affirmatively" place his or her medical condition in controversy, thereby satisfying Koump, was the issue in Brito v. Gomez, 168 A.D.3d 1 (1st Dept. 2018), revd. __ N.Y.3d __ (Sept. 10, 2019). Specifically, the issue was whether a plaintiff who makes a claim for lost earnings and/or loss of enjoyment of life waives the physician-patient privilege with respect to prior injuries not raised in the action by the plaintiff.

In Brito, plaintiff sued to recover damages for personal injuries allegedly sustained in a motor vehicle accident in May 2014. In her bill of particulars, she alleged injuries only to her cervical spine, lumbar spine and left shoulder. It also alleged claims for lost earnings and loss of enjoyment of life, which were limited to those specified injuries. Plaintiff testified at her deposition that in October 2009 she had surgery on her left knee and began to ambulate with the aid of a cane. After a 2012 accident, plaintiff had surgery to her right knee. She further testified that the knee surgeries may have affected her ability to wear heels; and her back and neck injuries prevent her from wearing heels and have made it more difficult to walk. Brito, 168 A.D.3d at 3.

After plaintiff's deposition, defendants sought discovery of all medical records pertaining to her two knee surgeries. Defendants argued they were entitled to such discovery as plaintiff had waived the privilege that attached to these records by reason of her claims for future lost earnings and loss of enjoyment of life. Id. at 4. The Supreme Court (Douglas, J.) denied defendants' motion to compel plaintiff to provide that further discovery.

Before discussing the First Department and Court of Appeals decisions, it is worthwhile to look at the case law addressing the issue of when a plaintiff affirmatively puts into issue his or her medical condition. Initially, the courts are in agreement that a plaintiff affirmatively places his or her medical condition in issue within the meaning of Koump when the plaintiff seeks damages for that condition, as alleged in plaintiff's bill of particulars or testified to at a deposition. See Koump, 25 N.Y.2d at 295 ("Manifestly, if a plaintiff in a negligence action asserts a mental or physical injury, he places that condition in controversy within the meaning of the [standard]."). Additionally, where a plaintiff has alleged an aggravation or exacerbation of an existing medical condition, that medical condition is in controversy. See, e.g., McGlone v. Port Auth. of N.Y. & N.J., 90 A.D.3d 479, 480 (1st Dept. 2011) (privilege waived where plaintiff claimed that "the subject accident aggravated or exacerbated underlying conditions that were asymptomatic before the accident and that he was disabled as a result"). In this situation, a defendant is entitled to discovery to determine the extent, if any, that plaintiff's claimed injuries are "attributable to accidents other than the one at issue here." Id.

However, a disagreement is present among the departments as to whether a waiver of the privilege occurs as to medical records pertaining to prior treatment or prior injuries that are not pleaded in the action where the plaintiff makes a claim of loss of enjoyment of life, lost earnings or reduced life expectancy from the pleaded injuries. (This disagreement is thoroughly explored in three thoughtful decisions: McLeod v. Metropolitan Trans. Auth., 47 Misc.3d 1219(A) (Sup. Ct. NY Co. 2019) (Michael D. Stallman, J.); Cianciullo-Birch v. Champlain-Centre North, 51 Misc.3d 1230(A) (Sup. Ct. Clinton Co. 2016) (Robert J. Muller, J.); and Wolf v. Walgreens Boots Alliance, 2017 NY Misc. LEXIS 2234 (Sup. Ct. NY Co) (Kathryn E. Freed, J.).) The Second Department follows the rule that when a plaintiff seeks to recover for loss of enjoyment of life and/or lost earnings caused by the pleaded injuries, the plaintiff has affirmatively waived the privilege for his or her entire medical history. See, e.g., Montalto v. Heckler, 113 A.D.3d 741 (2d Dept. 2014). The underlying rationale for this broad waiver is that the nature and severity of the plaintiff's prior or subsequent medical condition(s) may have an impact upon the award of damages, if any, recoverable for a loss of enjoyment of life or for lost earnings because of the pleaded condition(s). The First Department takes a contrary position, adopting the rule that pleading loss of enjoyment of life as well as lost earnings, alone, does not place plaintiff's "entire medical condition in controversy." See, e.g., Gumbs v. Flushing Town Ctr. III, LP, 114 A.D.3d 573, 574 (1st Dept. 2012). That pleading surplusage does not, in the court's view, amount to the requisite affirmative placement into issue of conditions for which damages are specifically sought. The Third Department seemingly adopted the Second Department rule in Coddington v. Lisk, 249 A.D.2d 817, 818 (3d Dept. 1998). The Fourth Department has not followed a consistent rule. Compare Tabone v. Lee, 59 A.D.3d 1021, 1022 (4th Dept. 2009) (no waiver) with Geraci v. National Fuel Gas, 255 A.D.2d 945, 946 (4th Dept. 1998) (waiver).

The pre-Brito legal landscape must also take into account Justice Judith J. Gische's dissenting opinion in Gumbs. Justice Gische expressed the view that a plaintiff's claims for future lost earnings and for loss of enjoyment of life affected a waiver of the privilege as to plaintiff's medical records pertaining to past and present conditions even though they were unrelated to the injuries he sued on. Informing Justice Gische's position was her recognition of CPLR article 31's mandate for disclosure of "all matter material and necessary in the prosecution or defense of an action." Gumbs, 114 A.D.3d at 576-77. Thus, she opined that when a plaintiff seeks future lost earnings, plaintiff necessarily puts his or her prior medical history in issue because his or her health directly bears on the question of how many years plaintiff realistically would have continued to work. Id. at 577. Likewise, when a plaintiff seeks damages for loss of enjoyment of life, requiring a jury to consider plaintiff's actual health condition, the plaintiff's medical records will shed light on other conditions plaintiff may be suffering from, which may impact plaintiff's ability to enjoy life. Id. As a result, it is only fair to the defendants to have access to those records, even if unrelated to a condition plaintiff is seeking damages for. Id. at 577-78.

Turning now to Brito, the First Department in a 3-2 decision affirmed Supreme Court's holding that plaintiff's claims for loss of enjoyment of life and for lost earnings did not affect a waiver of the privilege as to all of plaintiff's medical records. In a carefully crafted opinion for the majority, Justice Anil C. Singh, after acknowledging the First and Second Department's respective positions were flatly contradictory, emphatically held the court would not depart from its Gumbs decision. "In our view the Second Department's precedent cannot be reconciled with the Court of Appeals' rulings that the physician-patient privilege is waived only from injuries affirmatively placed in controversy." Id. at 8.

Justice Singh clearly interpreted Koump by reason of its emphasis on "affirmatively" putting a condition in issue as requiring the requested medical records to directly correlate to a specific physical or mental condition for which plaintiff is seeking damages. This is certainly a reasonable interpretation of Koump as there is nothing in Judge Scileppi's opinion that suggests the Court of Appeals would countenance the broad waiver recognized by the Second Department. In this regard, an observation by Judge Michael D. Stallman as to what could occur if a claim for loss of enjoyment of life or for lost earnings triggered a waiver is apt: "It bears repeating that virtually anything in plaintiff's entire medical history might be relevant to, or reasonably calculated to lead to admissible evidence as to the plaintiff's overall health and work life expectancy." McLeod, 47 Misc.3d 1219(A) at *31-32.

The dissenters in Brito, Justices David Freidman and Peter Tom, in an opinion authored by Justice Freidman, would have reversed Supreme Court. Notably, Justice Freidman did not argue for the adoption of the Second Department's rule. Rather, he eschewed that rule's broad and automatic waiver result, focusing instead, as Justice Gische did in her dissenting opinion in Gumbs, upon the need of defendants for the medical records pertaining to plaintiff's pre-accident knee surgeries to be able to inquire fully into possible alternative grounds for her alleged difficulty to walk and stand. Brito, 168 A.D.3d at 17-18. Upon a thoughtful analysis, he concluded that precedent in the First Department "permitted disclosure of medical records pertaining to a pre-existing condition that possibly gave rise to the same functional deficits or pain that the plaintiff attributed to injuries caused by the defendants' negligence." Id. at 18. As plaintiff was alleging functional deficits in her ability to walk and stand, deficits which were directly related to her prior knee injuries, a finding of waiver was proper. Although not expressly stated, Justice Freidman was concluding this approach to waiver, e.g., taking into account actual need, was not precluded by Koump.

The combination of the two well-written opinions with differing but albeit defensible conclusions, and conflicting approaches among the departments certainly made Brito ripe for Court of Appeals review. The First Department thus justifiably granted leave to appeal to the Court of Appeals to defendants, certifying the question of whether its affirmance of Supreme Court was proper. The question clearly presented was whether under Koump a plaintiff affirmatively places his or her entire medical condition by mere claims of loss of enjoyment of life or lost earnings. The Court of Appeals was thus presented with an issue of first impression, one that the Appellate Division departments were split, and which was important to attorneys engaged in personal injury litigation, and which presented a reviewable question of law

The court's response? First, it placed the appeal in its Rule 500.11 review process which means the appeal is decided without oral argument and the benefit of full briefing of the issue presented (only a limited letter brief is permitted), and with a limited opportunity for the submission of amicus briefs. The letter briefs were submitted in May 2019, and on Sept. 10, 2019 the court decided the appeal in an unsigned memorandum. The entirety of the Court of Appeals' decision reversing the First Department is as follows: "Plaintiff affirmatively placed the condition of her knees into controversy through allegations that the underlying accident caused difficulties in walking and standing that affect her ambulatory capacity and resultant damages. Under the particular circumstances of this case, plaintiff therefore waived the physician-patient privilege with respect to the prior treatment of her knees and the discovery sought by authorizations pertaining to the treatment of plaintiff's knees is 'material and necessary' to defendants' defense of the action (CPLR 3101[a])." Slip Opinion, p.11 (citations omitted).

What hath the Court of Appeals wrought? The cryptic nature of its decision raises several questions which are not easily answered: Has the narrow approach to waiver adopted by the First Department now been abrogated? If so, what is the rule now in play—the Second Department rule, the approach advocated by Justices Friedman and Gisch, or some variation thereof? Is the court's holding limited to factual situations that are on all fours? Needless to say, it will take time to definitively assess the impact of Brito. In the meantime, legislation addressing the issue may be the preferable route to take to clarify the landscape.

Michael J. Hutter is a Professor of Law at Albany Law School and is Special Counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence as prepared by the Chief Judge's Evidence Guide Committee.