MEDICAL RECORDS IN A CAR ACCIDENT CASE:

WHAT MUST A PLAINTIFF DISCLOSE?

At Kommer, Bave & Ollman LLP, our attorneys and staff take great care to insure that our clients’ privileged and private information is protected and only disclosed when required by law.


Discovery sought before a case is determined to be ready for trial includes disclosure of “all matter material and necessary in the prosecution or defense of an action” See, CPLR 3101(a). However, medical records are privileged documents and, unless that privilege is waived by the patient, the documents are unavailable. See, CPLR § 4504 and CPLR § 3101 (b). While one way the privilege can be waived is through the commencement of a personal injury action, the waiver occasioned by such action is not a wholesale waiver of all information about the Plaintiff’s entire physical and mental conditions, but a waiver only of the physical and/or mental condition that is affirmatively placed in controversy. See, Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457 (1983). Such a waiver does not include information involving unrelated illnesses and treatments. See, Carter v. Fantauzzo, 256 A.D.2d 1189, (4th Dept. 1998). In Carter v. Fantauzzo, the Appellate Division held that the Trial Court abused its discretion in granting the Defendants’ application for unrestricted authorizations to obtain all of the Plaintiff’s medical records. See, Carter v. Fantauzzo, 256 A.D.2d 1189, (4th Dept. 1998).


WHAT IS DISCOVERY IN A LAWSUIT?


There are several phases to a lawsuit. Once the parties to a lawsuit have formally appeared and any pre-answer motions have been resolved such that the plaintiff’s claims are deemed to be appropriate, the parties proceed with the discovery phase of the case. This is a time for the parties to formally gather evidence and investigate the facts, which brought about the basis for the lawsuit. Courts regulate this phase closely and set time limits to complete the requisite disclosure and discovery. This is accomplished through various ways including making demands, responding to demands and obtaining pre-trial testimony from people or witnesses that have knowledge of the facts or circumstances of the case. Disclosure during the discovery phase generally includes “all matter material and necessary in the prosecution or defense of an action” See, CPLR 3101(a).


Once the discovery phase is complete either party can file the Note of Issue and Certificate of Readiness. The purpose of a Note of Issue and Certificate of Readiness is to assure that cases, which appear on the Court’s trial calendar are, in fact, ready for trial. See, Tirado v. Miller, 75 A.D.3d 153 (2nd Dept. 2010) citing Mazzara v Town of Pittsford, (4th Dept. 1968). CPLR § 3402 (a) provides that Notes of Issue may be filed at any time after issue is joined, or 40 days after service of the summons irrespective of the joinder of issue, and must be accompanied by whatever data is required by the applicable rules of Court. See, CPLR § 3402 (a). 22 NYCRR 202.21 (a) is an applicable rule of Court, which requires all Notes of Issue to be accompanied by Certificates of Readiness. A certificate of readiness certifies that all discovery is completed, waived, or not required and that the action is ready for trial. See, 22 NYCRR 202.21 (b). The effect of a statement of readiness is to ordinarily foreclose further discovery. See, Tirado v. Miller, 75 A.D.3d 153 (2nd Dept. 2010) citing to, Blondell v Malone, 91 AD2d 1201 (4th Dept. 1983).


There are times when parties to a lawsuit wish to conduct additional discovery after the Note of Issue and Certificate of Readiness have already been filed. Discovery that is nevertheless sought after the filing of a Note of Issue and Certificate of Readiness is governed by a different set of procedural principles than discovery that is sought prior to the filing of a Note of Issue. Post-Note discovery, may only be sought under two procedural circumstances set forth in 22 NYCRR 202.21. One method of obtaining Post-Note discovery is to vacate the note of issue within 20 days of its service pursuant to 22 NYCRR 202.21 (e), by merely showing that discovery is incomplete and the matter is not ready for trial. The second method, beyond that 20 days, requires that the movant, pursuant to 22 NYCRR 202.21 (d), meet a more stringent standard and demonstrate “unusual or unanticipated circumstances and substantial prejudice” absent the additional discovery. See, Schroeder v. IESI NY Corporation, 24 A.D.3d 180 (1st Dept. 2005); See, also, Audiovox Corp. v Benyamini, 265 AD2d 135 (2nd Dept. 2000). “A lack of diligence in seeking discovery does not constitute a special or an extraordinary circumstance.” See, Marks v. Morrison, 275 A.D.2d 1027 (4th Dept. 2000) citing, Melanson v. Caggiano, 251 A.D.2d 1059 (4th Dept. 1998) quoting, Laudico v. Sears Roebuck & Co., 125 A.D.2d 960 (4th Dept. 1986). Furthermore, 22 NYCRR 202.21 (d) also requires the unusual or unanticipated circumstances develop subsequent to the filing of the Note of Issue and Certificate of Readiness. See, Marks v. Morrison, 275 A.D.2d 1027 ( 4th Dept. 2000).




While it is possible to conduct discovery after the Note of Issue and Certificate of Readiness have been filed, there are only limited circumstances that justify doing so. At Kommer, Bave & Ollman LLP, our attorneys are diligent in making sure that whatever discovery is necessary is done so prior to the filing of the Note of Issue and Certificate of Readiness.


John S. Kommer ESQ.
KOMMER BAVE & OLLMAN LLP
145 Huguenot Street, Suite #402
New Rochelle, NY 10801
914-633-7400