Access to Records of Psychiatric Care in the Defense of Medical Malpractice Cases

At the trial of a medical malpractice lawsuit, the records of the patient’s treatment constitute the central evidence which will be relied on by the parties, their attorneys, the expert witnesses, and the trier of fact. From the earliest discovery demand through the subpoenas issued for trial, there is a continuous effort to obtain, evaluate, weigh, and reconcile the information contained in the records of the patient’s treatment. With the increasing complexity of the conditions treated and the spectrum of available treatment, information which is relevant to the determination of issues of liability, causation, and damages may be located in records forgotten or not appreciated by the patient or her caregivers. A thorough evaluation of the records as they are received is always revealing of other providers whose records have not been identified or requested. Where the patient continues to obtain treatment related to the issues in the case, there are challenges related to obtaining complete information in time to assure that meaningful depositions and expert input can be obtained.

It is well established that a New York litigant who affirmatively places his physical or mental health in controversy thereby waives the statutory physician-patient privilege [Dillenbeck v. Hess, 73 NY2d 278 (1989)]. The patient’s privilege must ultimately be waived in order for the case to be proved, so the waiver is effective during discovery as well [Koump v. Smith, 25 NY2d 287 (1969)]. The law in this area was firmly established before HIPAA constraints were imposed by federal statute [See Arons v. Jutkowitz, 9 NY 3d 393 (2007)]. CPLR Sec. 3101(a) requires full disclosure of all matter “material and necessary” in the prosecution or defense of an action, and the scope of what is material and necessary is liberally construed to include any facts bearing on the controversy [cf. Allen v. Crowell-Collier, 21 NY2d 403 (1968)]. Even where the facts themselves are not admissible, any matter which may lead to admissible evidence is discoverable [Bigman v. Dime Savings Bank, 153 AD2d 912 (2d Dept. 1989)]. Thus any party who has affirmatively placed her medical condition in controversy must provide written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR   [Cynthia B. v. New Rochelle Hospital, 60 NY 2d 452 (1983)].