By Friedman, J.P., Manzanet-Daniels, Tom, Mazzarelli, Singh, JJ.Benedicta Brito, Plaintiff-Respondent, -against- Rafael Gomez, et al., Defendants-Appellants. Defendants appeal from the order of the Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about June 30, 2016, which, to the extent appealed from as limited by the brief, denied defendants’ motion to strike the note of issue and to compel plaintiff to provide discovery relating to prior treatment of her knees. Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas Hurzeler and C. Briggs Johnson of counsel), for appellants.SINGH, J.We are asked on 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 that the privilege is waived only for injuries affirmatively placed in controversy.Plaintiff Benedicta Brito was allegedly involved in a motor vehicle accident on May 5, 2014. She commenced this action against defendants Rafael Gomez and Don Thomas Buses, Inc. to recover damages for personal injuries allegedly sustained in the accident. In her bill of particulars, plaintiff alleges injuries only to her cervical spine, lumbar spine and left shoulder. Over her counsel’s objection, 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. Plaintiff testified that the knee surgeries may have affected her ability to wear heels. Her back and neck injuries prevent her from wearing heels and also have made it more difficult to walk.On March 14, 2016, defendants served a Supplemental Notice for Discovery and Inspection and Demand for Authorizations (Supplemental Notice for Discovery). As relevant to this appeal, defendants demanded “[a]uthorizations for all facilities where plaintiff received medical treatment for her knees, including, but not limited to, the hospital where her knee surgeries were performed.”On April 13, 2016, plaintiff filed a note of issue, certifying that the matter was ready for trial and represented that there were “no outstanding requests for discovery.”On May 9, 2016, defendants timely moved to vacate the note of issue and to compel compliance with their Supplemental Notice for Discovery. Plaintiff opposed the motion on June 6, 2016 and responded to the Supplemental Notice for Discovery on June 3, 2016, objecting to the discovery demand for unrelated medical treatment.By letter dated June 23, 2016, defendants noted that plaintiff had made “multiple claims relating to loss of enjoyment of life in the bill of particulars, including, but not limited to, ‘impairments and negative effects upon plaintiff’s pre-accident enjoyment of life, day-to-day existence, activities, functions, employment and involvements; limitation, diminution and/or effect of functions, activities, vocation, avocation and all other activities in which the plaintiff engaged prior to the underlying accident.’” The letter referred to plaintiff’s deposition testimony concerning her prior left knee surgery in October 2009 and right knee surgery in 2012, her reliance on a cane, bilateral knee pain, and limited ability to wear heels, which was also a post-accident complaint. The letter demanded authorizations for facilities where plaintiff received treatment for her knees.On June 28, 2016, Supreme Court ordered plaintiff to provide authorizations for medical treatment plaintiff received for her knees. Nor did Supreme Court grant the request to vacate the note of issue. Defendants appeal.As an initial matter, defendants — and the dissent – contend that the note of issue should be stricken pursuant to Uniform Rules for Trial Courts (22 NYCRR) §202.21(d) or alternatively, 22 NYCRR §202.21(e). Supreme Court granted defendants’ request for authorizations to various medical providers and ordered plaintiff to appear for an independent medical examination. Plaintiff complied with the court’s order. Accordingly, the note of issue should not be vacated.CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the … defense of an action” by a party to the action (see Allen v. Crowell-Collier Publ.Co., 21 NY2d 403, 406 [1968]). ”[D]iscovery determinations are discretionary [and] must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure” (Andon v. 302-304 Mott St. Assoc., 94 NY2d 740, 747 [2000]). A trial court’s disclosure determinations should be given deference (see Don Buchwald & Assoc. v. Marber-Rich, 305 AD2d 338 [1st Dept 2002]).When the mental or physical condition of a litigant is in controversy, a notice for a medical exam or for the inspection of records may be served (see CPLR 3121[a]). A party’s right to discovery of a litigant’s mental or physical condition is subject to the physician-patient privilege. The “privilege exists to protect important policies namely, uninhibited and candid communication between patients and medical professionals, the accurate recording of information and the protection of patients’ reasonable privacy expectations” (Matter of New York City Health & Hosps. Corp. v. New York State Commn. of Correction, 19 NY3d 239, 244 [2012]). ”[T]he privilege remains rooted in both the statutory law and public policy of New York State” (Dillenbeck v. Hess, 73 NY2d 278, 286 [1989]; see also CPLR 4504). The privilege was codified “on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help” (Williams v. Roosevelt Hosp., 66 NY2d 391, 395 [1985]).However, the privilege is waived where a party affirmatively places his or her physical or mental condition in controversy (see Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 [1983]; Koump v. Smith, 25 NY2d 287 [1969]). ”In order to effect a waiver, the party must do more than simply deny the allegations in the complaint he or she must affirmatively assert the condition either by way of counterclaim or to excuse the conduct complained of…” (Dillenbeck, 73 NY2d at 288 [internal quotation marks omitted]). The burden is on the party seeking the disclosure to make an evidentiary showing that the parties’ physical condition is in controversy (id.). We have consistently followed the waiver rule as enunciated by the Court of Appeals (see Spencer v. Willard J. Price Assoc., LLC, 155 AD3d 592 [1st Dept 2017] [the plaintiff's diabetic condition and high blood pressure were not placed in controversy since she sought to recover for orthopedic injuries]; Kenneh v. Jey Livery Serv., 131 AD3d 902 [1st Dept 2015] [the plaintiff's diabetic condition, anxiety and other symptoms were not placed in controversy as she sought to recover for injuries to the right knee, shoulders and spine]; Gumbs v. Flushing Town Ctr. III, L.P., 114 AD3d 573, 574 [1st Dept 2014] [records of the plaintiff's cardiologist and primary care physician not discoverable since he was seeking to recover damages for orthopedic injuries]; Felix v. Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012][the plaintiff's subsequent obstetrical treatment was not placed in controversy as her claims relate only to subsequent emotional and psychological injuries]).Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder. Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident.Relying on Caplow v. Otis Elev. Co. (176 AD2d 199, 200 [1st Dept 1991]), defendants argue that plaintiff’s prior knee injuries are material and necessary to plaintiff’s claim for lost earnings. In Caplow, we permitted discovery related to the plaintiff’s treatment for gout, even though he made no claim for injuries to his legs and feet. We also allowed discovery related to the plaintiff’s upper back, although he only claimed injuries to his lower back. We reasoned that the medical records “might be useful” in determining to what extent the plaintiff’s lost wages might be attributable to the plaintiff’s medical treatment subsequent to the accident at issue.However, our cases since Caplow has granted discovery of medical records only where the plaintiff has alleged an aggravation or exacerbation of prior injuries (see McGlone v. Port Auth. of N.Y. and N.J., 90 AD3d 479, 480 [1st Dept 2011] [affirming Supreme Court's order requiring the plaintiff to provide authorizations as the plaintiff claimed that "the subject accident aggravated or exacerbated underlying conditions that were asymptomatic before the accident"]; Rega v. Avon Prods., Inc., 49 AD3d 329 [1st Dept 2008] [the defendants entitled to discovery to determine whether the plaintiff's claimed injuries are attributable to other accidents where the plaintiff had alleged aggravation or exacerbation of prior injuries that may have impacted on his ability to work after the accident at issue]; cf. Noble v. Ackerman, 216 AD2d 140, 140 [1st Dept 1995] ["(d)efendant's request for medical authorizations pertaining to a knee operation performed on plaintiff more than ten years before the accident in issue was properly denied on the ground that plaintiff does not claim that his knee was injured in the accident or that his prior knee injury was aggravated"]; Ciancio v. Woodlawn Cemetery Assn., 210 AD2d 9, 10 [1st Dept 1994] [citing to Caplow, we ruled that post-accident hospital records for an undisclosed medical condition unrelated to the injuries claimed in the action were not material and necessary to defend against the plaintiff's claim for lost earnings]).Here, as we noted earlier, plaintiff does not claim that her prior knee injuries were exacerbated or aggravated as a result of the 2014 accident. Accordingly, plaintiff’s claim for lost earnings does not affirmatively place the condition of her knees in controversy (see Felix, 100 AD3d at 471; Tomaino v. 209 E. 84 St. Corp., 68 AD3d 527 [1st Dept 2009] [the plaintiff's claim for lost earnings relating to a fractured humerus did not place in controversy a prior fracture of her ring finger and a subsequent rib fracture]).Nor did plaintiff affirmatively place the physical condition of her knees at issue by asserting loss of enjoyment of life.As a threshold matter, a claim for loss of enjoyment of life is not a separate item of recoverable damages, but a factor in assessing pain and suffering (see McDougald v. Garber, 73 NY2d 246 [1989]). Therefore, the factfinder, in evaluating damages for pain and suffering, may “consider the effect of the injuries on the plaintiff’s capacity to lead a normal life” (id. at 255). In Gumbs (114 AD3d at 574), the plaintiff brought a personal injury action seeking damages for a torn rotator cuff, a fractured ankle and other orthopedic injuries. The defendants demanded authorizations for medical records from the plaintiff’s cardiologist and primary care physician on the ground that the plaintiff had placed his entire medical condition at issue.We found that by suing for orthopedic injuries, the plaintiff did not place his entire medical condition in controversy. The dissent in Gumbs would have directed production of the medical records, reasoning that by making claims for lost earnings and loss of enjoyment of life, the plaintiff placed his general health and medical history at issue. The dissent noted that the medical records for the unrelated injuries would “shed light on whether he suffered from other conditions, having nothing to do with this accident, which may have impacted upon his ability to enjoy life and/or life expectancy” (114 AD3d at 577 [Gische, J., dissenting]).However, the majority’s decision in Gumbs continues to be the prevailing law in this department. ”Plaintiff’s waiver of his physician-patient privilege is limited to those conditions that he affirmatively placed in controversy” (Diako v. Yunga, 148 AD3d 438, 438 [1st Dept 2017]; see also Rohan v. Turner Constr. Co., 158 AD3d 436 [1st Dept 2018]; Spencer, 155 AD3d at 592). Similarly, in James v. 1620 Westchester Ave. LLC (147 AD3d 575 [1st Dept 2017]), we held that the defendant failed to establish how the plaintiff’s drug treatment, mental health information, and HIV-related information were related to her future enjoyment of life when she placed at issue her back and leg injuries. Defendants cite to Second Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The Second Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries” (Greco v. Wellington Leasing L.P., 144 AD3d 981, 982 [2d Dept 2016]; see also Bravo v. Vargas, 113 AD3d 577, 578 [2d Dept 2014]; Orlando v. Richmond Precast, Inc., 53 AD3d 534, 535 [2d Dept 2008]; Vanalst v. City of New York, 276 AD2d 789 [2d Dept 2000]). We are not persuaded by the reasoning of the Second Department. 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 for injuries affirmatively placed in controversy.The dissent acknowledges 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” and argues that we need not adopt the Second Department’s expansive view. Instead, the dissent would find that medical records pertaining to a preexisting condition that is relevant to a functional deficit — here plaintiff’s alleged difficulty in walking and standing — should be discoverable.We are not persuaded by this reasoning. Plaintiff has not affirmatively placed the condition of her knees at issue. Therefore, the privilege is not waived. In fact, the dissent’s argument endorses the expansive view the Second Department has taken on the issue of waiver.Moreover, the cases cited by the dissent in support of its position are distinguishable. In Walters v. Sallah (109 AD3d 401 [1st Dept 2013]), the plaintiff claimed personal injuries as a result of an automobile accident. He alleged an inability to perform his usual daily functions for at least 90 out of 180 days following the accident. The defendants sought to determine whether the plaintiff’s preexisting arthritis was the basis for his inability to perform substantially all his usual daily activities. We found that the defendants met their burden to show that the records relating to the plaintiff’s arthritis were relevant to a physical condition that the plaintiff placed in controversy. Here, in contrast, defendants seek medical records relating to plaintiff’s knees on the ground that the treatment is relevant to her claim for lost earnings and loss of enjoyment of life.In Bennett v. Gordon (99 AD3d 539, 539-540 [1st Dept 2012]), the plaintiff claimed injuries to his left shoulder and head. Additionally, the plaintiff alleged tremors in his upper extremities and an overall weakness. The plaintiff maintained that these injuries permanently disabled him. We found that Supreme Court providently exercised its discretion in allowing “limited discovery” regarding a previous “right shoulder injury.” Here, plaintiff limits her claims to specific spinal and shoulder injuries. She makes no claim of an overall weakness or permanent disability as a result of her accident.The dissent agrees that plaintiff makes no claim that her knees were injured in the accident. Nevertheless, the dissent argues that since the condition of the knees is essential to the actions of walking and standing, plaintiff has placed at issue the condition of her knees. Defendants point to plaintiff’s deposition testimony — her difficulty in walking, use of a cane to ambulate, and inability to wear heels — as a basis for claiming that the medical records for her knee surgeries are material and necessary to their defense of this action. Implicitly conceding that this is contrary to our established precedent, the dissent relies on its own medical theory that plaintiff’s preexisting knee condition possibly affects her ability to walk and stand. This argument is not raised by defendants but rather formulated by the dissent. Plaintiff has not had an opportunity to respond through medical opinion to the dissent’s theory. Moreover, medical opinions are the domain of an expert and not this Court. In fact, defendants’ have failed to provide opinion, expert or otherwise, causally connecting plaintiff’s prior treatment of her knees to her subsequent spinal and shoulder injuries. Defendants have failed to meet their burden to establish that plaintiff has placed her prior knee injuries in controversy.We decline to substitute our judgment for the sound discretionary discovery determinations made by Supreme Court.Accordingly, the order of the Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about June 30, 2016, which, to the extent appealed from as limited by the brief, denied defendants’ motion to strike the note of issue and to compel plaintiff to provide discovery relating to prior treatment of her knees, should be affirmed, without costs.All concur except Friedman, J.P. andTom, J. who dissent in an Opinion by Friedman, J.
