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Defendants in medical malpractice cases often seek extensive information regarding the plaintiff’s medical history. Plaintiffs may find these requests intrusive. New York medical malpractice attorneys know that, although courts often allow defendants wide latitude in accessing a plaintiff’s records, plaintiffs may sometimes obtain a protective order to prevent defendants from accessing certain records. A New York court may issue a protective order to deny, limit, condition, or regulate any “disclosure device” “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice…” CPLR § 3103.

A New York court recently heard a plaintiff’s motion for a protective order. The plaintiff filed a medical malpractice action following a cataract extraction with an intra-ocular lens implant for each of his eyes. The plaintiff claimed damages for past and future lost earnings.

In his deposition, the plaintiff testified regarding a cardiac condition and certain coronary procedures he had received. The defendants served a demand for the plaintiff’s authorization for the defendants to obtain records from the plaintiff’s treating cardiologist, ophthalmologist, optometrist, and a hospital. The defendants subsequently moved to compel the authorizations. The plaintiff was subsequently ordered to produce the items of discovery in the defendant’s motion, except certain financial records.

The plaintiff refused to give authorizations for the records of his cardiologists and the hospital and moved for a protective order to prevent their disclosure. He argued the records in question did not relate to his injuries. He also claimed a required release of the records would be improper to the extent the defendants sought them to show the potential impact on the plaintiff’s life expectancy because he did not allege the injuries shortened his lifespan. He further argued that information related to life expectancy would confuse the jury and prejudice him at trial.

The defendants argued the records were related to the plaintiff’s $700,000 lost wages claim. The defendants argued the plaintiff’s medical history was necessary to establish his work-life expectancy and therefore to calculate his lost earnings.

As a general rule, a party must fully disclose all matters material and necessary in the prosecution or defense of an action. CPLR 3101. Courts interpret “material and necessary” liberally. Parties are generally required to provide authorizations to release pertinent medical records if the party has put his or her physical or mental condition at issue.

In keeping with previous case law, the court found that the plaintiff put his overall health at issue by claiming future lost wages. The court reviewed the records in camera and found that they did not include anything that would lead to embarrassment or prejudice, such that they would warrant a protective order. The court therefore ordered the production of the records.

This case illustrates the general rule that a claim for future lost wages raises the issue of the plaintiff’s general health. Not all medical malpractice cases involve claims for future lost wages, however. In a case involving a temporary injury that does not result in future losses, the plaintiff’s general health condition may not be at issue. Furthermore, even in this case, the court reviewed the records to determine if their disclosure would bring unreasonable embarrassment or prejudice to the plaintiff.

If you have been injured through the negligence of a medical professional, an experienced New York medical malpractice attorney can help you. Call the Law Offices of Marc S. Albert at 1.855.252.3788 to discuss your case.

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