Over the past few years, there have been a number of decisions of interest from the Appellate Division involving issues related to discovery in medical malpractice and personal injury actions. Among them is the First Department’s decision in Fusco v. Mace Avenue Medical, 209 A.D.3d 561 (1st Dept. 2022), holding that the defendants in that medical malpractice action could not compel the plaintiff to produce the copies their records regarding his treatment.

While it might seem axiomatic that defendant health care providers should have no need to obtain from a patient their own records regarding the patient, a defendant might be inclined make such a request if it was concerned about improprieties in the records, such as alterations, spoliation or different versions of the records—over the years we have seen each of these scenarios.