Williams v. Hospital , 108 A.D.2d 9 ( 1985 )

OPINION OF THE COURT

Kupferman, J. P.

Plaintiffs, an infant and his father, brought this medical malpractice action alleging that due to the defendants’ obstetrical management of the labor and delivery, the infant plaintiff suffered brain damage and an injury which resulted in a palsy of his upper right extremity and hand.

Plaintiffs produced the mother as a nonparty witness for examination. Defendant’s counsel was able to elicit the fact that the mother had two previous children. However, when counsel tried to determine whether either of them had any physical or congenital problems, plaintiff’s counsel objected, claiming a privilege. After defense counsel had further determined that the mother had also had an abortion, plaintiff’s counsel objected to any questioning relative to the mother’s medical history. Defendants’ motion for a further examination of the mother was denied. We reverse.

CPLR 3101 (a) requires full disclosure and is designed to promote liberal discovery. It is tempered by CPLR 3101 (b), which states that upon objection, privileged matter will not be obtainable. CPLR 4504 (a) provides a privilege for information given by a patient to a doctor for professional purposes, in confidence. Plaintiffs combine CPLR 3101 (b) with 4504 (a) for the proposition that the infant plaintiff’s mother is privileged from testifying about her medical history, or the medical history of her two other children. As authority, the plaintiffs cite the Second Department case of Hughson v St. Francis Hosp. (93 AD2d 491).

In Hughson (supra), the Second Department allowed the infant plaintiff’s nonparty mother to assert a privilege and refuse to testify about her own or her other children’s medical history. However, the court held that if the mother asserted this privilege, the infant plaintiff would be precluded from introducing any of this evidence at trial.

This situation should first be distinguished from Mullarkey v Misericordia Hosp. Med. Center (104 AD2d 1064). That case sought written authorization for the mother’s past medical history and medical records of the infant plaintiff’s siblings. In that respect it was similar to Burgos v Flower & Fifth Ave. Hosp. (108 Misc 2d 225). Those defendants also wanted the medical records of an infant plaintiff, his siblings and his mother. In both of those cases, the defendants were seeking records, as opposed to witness testimony at an examination, which is at issue here. It is possible that records could contain information furnished to the physician in confidence. Thus, those documents could be privileged.

Hughson states “She [the infant plaintiff’s mother] is not a party to this lawsuit, and she has not put in issue her physical condition, medical history or family history” (93 AD2d, at p 500; emphasis in original). Nonetheless, the mother must necessarily put her medical history in issue. The Hughson court recognized the necessity of the mother testifying about her condition during the time the infant plaintiff was in útero. However, the mother’s medical history neither begins nor ends at the infant plaintiff’s birth. The mother’s past medical history is relevant.

The court here at Special Term, while indicating its conclusion that disclosure should be permitted felt constrained to follow the Hughson result. In our view, there is no privilege in testimony as to what actually happened. The privilege applies to confidential information given to the physician which enables him to act in his professional capacity. (CPLR 4504 [a].) To the extent that the Hughson decision is to the contrary, we do not follow it.

Accordingly, the order of the Supreme Court, New York County (Gammerman, J.), entered on February 24, 1984, denying the defendants’ motion for a further examination before trial of the nonparty witness, Mrs. Marian Williams, should be reversed, on the law, without costs, the motion granted, and the examination of Mrs. Williams permitted provided that notice by the defendants is given to the witness not less than 30 days from the date of such examination, or at such time and place as the parties may agree.