Neuhaus v Concorde Med. Group, PLLC

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Neuhaus v Concorde Med. Group, PLLC 2005 NY Slip Op 30637(U) December 2, 2005 Supreme Court, New York County Docket Number: 114922/04 Judge: Sheila Abdus-Salaam Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT PRESENT: I OF THE STATE OF NEW YORK - NEW. YORK ·COUNTY PART SHEILA ABO.US-SALAAM Justice 13 Donna Neuhaus INDEX MO. 114922/04 MOTION DATE 10/27/05 •vMOTION SEQ. NO. _ _0.-..0.._.1_ _ __ Concorde Medical Group, PLLC. et al. MOTION CAL. NO. - - - - - The following papers, numbered 1 to _ _ were read on this motion.to/for-----PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits ---------------- Cross-Motion: E Yes ": I D No Upon the foregoing papers, it is ordered that this motion by plaintiff to . compel defendant Scott Weber, M.D. to produce and. make available:.the original medical chart of decedent Robert Neuhaus for review by a handwriting expert Is granted. The cross-motion by Dr. Weber fo~ a protective order against a demand by"plaintiff that" br·. W~ber produce a c~py of his medical chart for ·plaintiff Donna· Neuhaus and forward it directly to plaintiff's attorneys without releaslng it to ·or Weber's attorneys or any·. . rt . other entity is granted only to the extent indicated 'beiow. At issue in this medical malpractice/wrongful death action is whether, as plaintiff contends, Dr. Weber (or any other defendant in this case) recommended that Robert Neuhaus undergo a transesophageal echocardiogram or TEE, which could have diagnosed Mr·. Neuhaus's fatal endocarditis and prevented his death. At Dr. Weber's recant deposition, he produced his original ·medical chart for Robert Nelihaas whi~h contained a [* 2] note documenting a telephone conversation with Mr. Neuhaus wherein a TEE was recommended. Plaintiff contends that this note is a fabrication and wishes to have the original· chart analyzed by a forensic to determine, among other things, whether Dr. handw~iti~~ .expert Weber used the same pen to write all of the notes in the chart and whether the chart had been altered. Defendant opposes the motion on the ground that plaintiff has not laid a sufficient foundation for her suspicion that.the note is a fabrication .. However, such Is not a valid objection to production of the original chart during the discovery phase of this action. Nor does defendant claim that it would be burde~so'!'e to him or his attorneys to produce the origlnal chart even though a complete copy indisputably has been produced. Here, as in . Hawksby v. New York Hosoital (162 AD2d 179 [1990]),"there does not appear to be any reason for .denying plaintiff access· to this {original medical ·chart which] might be useful to plaintiff, and moreover, p·roviding this item would not seem to impose much difficulty upon defendants1 or their attorneys" fu!. at 181 ). Of course, the original medical chart must be preserved for trial. Thus, any Inspection by plaintiff's expert must be nondestructive and may not alter or change the chart in any way. · · I•' Regarding plaintiff's own. medical chart, which ·Is the ·subject of the cross-motion for a protective order~ plaintiff Is entitled ·to keep her private· medical Information from being disclosed to defenda11t' s attorneys unless and until plaintiff. decides to use It du·r~~g the trial of this action. Plaintiff was examined by Dr. Weber, who prescrib.ed medication for her, in February 2003 following her husband's death. ·she provided a HIPAA2 compliant authorization for Dr. Weber's· records o.f this one-time visit, which restricted disclosure of the records to plaintiff's attorneys only. 1 0nly one defendant, Dr. Weber, is involved in this motion. 2 HIPAA stands for the federal Health Insurance Portability and Accountability Act which protests the privacy of a.patient's health information. · 2 · [* 3] Dr. Weber claims that this restriction on disclosure improperly interferes with his right to seek counsel in this action . or. :in an.Y .future . .. proceeding plaintiff might i~ltiate against him. In supp6·~t' ~f .thi~· ~l~lm; Or.. ' cites, Rea v. Pardo (132 AD2d 442 (1987]), a Weber .. '• case in ~hich th~ Fourth Department decided that a physician faced with a similar ·· authorization 3 to forward a copy of the patient's medical records to the patient's attorney was justified In first disclosing the records to ·the physician's medical malpractice carrier, and did not thereby vlolate the physician-patient privilege or breach the patient's right to confidentiality. In reaching its decision, the court found that disclosure of·~ patient's medical information to an ins=urer is justified "when the doctor has 8 reasoniible belief that a claim for medical malpractice will be made against him by the patient. . . The doctor's belief is reasonable only if 'the [patient 1 knows or suspects. that he is the victim of medical malpractice and has ·expressed an intent to pursue his legal rights' by informing the doctor of his intention to make sue~ claim or by performing .some other affirmative act from which the doctor reasonably may infer such intention.. (jg. at 447, quoting Hammonds v. Aetna Cas. & Sur. Co., 243· F Supp 793, 804-805). However, the situation here is unllke the situation faced by the court in Rea. Plaintiff's tirne has expired to file a medical malpractice action for. her own treatment by Dr. Weber, arid plaintiff has not pointed to any circumstances that might extend the two-year-and ..sl~·-months statute of limitatlons for such actions". Indeed, plalntlff's counsel has· represented that plaintiff "has no intention of bringlng·a medical malpractice action· against Defendant Scott Weber, M.D~, arising out of his treatme·nt of 'her" , (Affirmation In Opp.osition and Reply Affirmation, n. 4). Thus, defendant cannot have any "reasonable belief that a claim for medical malpractice will 3 Rea is a pre-HIP.AA case, but the phyeiciari-patient privilege has existed in the state of New York for some time (see Dillenbeck v. Hess, 73 NY2d :278 [1989]; CPLR 45Q4). 3 .· [* 4] be made a·gainst him by the patient." Nor has plaintiff waived her own physician-patient privilege by bringing this action in her representative .. • • •'' I capacity for the treatment Dr. Weber rendered to her deceased spouse~ It' appears that the reason plaintiff wishes to obtain· a copy of her own ,. . . medical chart·from Dr. Weber is to have it reviewed by a handwriting expert in connection with her contention that Dr. Weber fabricated the note in her husband's chart about the TEE recommendation. Plaintiff ultimately may .not pursue this fabrication theory. If she does pursue it and decides to call as a witness· at trial a handwriting expert who will use plaintiff's ·medical chart as a basis for the expert's opinions, plaintiff must.provide a CPLR 3101(d) response for this expert at least 60 days prior to trial' ·(pursuant to Part 13's Pre...Trial Order) accompanied by ( 1) an autho~lzation to release plaintiff's medical records to Dr. Weber's attorneys and any handwriting expert(s) Dr. Weber chooses, and (2) the original medical chart of Robert Neuhaus .. Absent any intention by plaintiff to use her own medical chart in the prosecution of this action as noted above, and there ·being no apparent viable other action or proceeding plaintiff might be able to initiate against Dr. Weber arising ·from his treatment of her, permitting Dr. Weber's attorneys to see plaintiff's medical chart at this juncture under the guise of seeking legal · advice because plaintiff. and Dr. ·weber are adversaries in this action is an insufficient reason to breach the confidentla_lity of plaintiff's private medical . . information .. Thus, the cross-motion for a protective order is granted only to the limited extent indicated above.. .. Dr. Weber must produce the original medlcai chart fqr. Robert ~h~st)' and comply with the authorization provided by plaintiff for her o'1 l.Lclir chart by the January 12, 2005. status conference at ~ 1 :OD Dated: December 2, 200§ . Check one: 0 ~· M. \\iC \ '2. - .,&B-,4 . · · .~I( ~ NON-FINAL DISPOSITION'" .. ~· Check if appropriate: D DO NOT POST 4 . .. \ . ;·. ..- NE'f ' · ·~off~ OQW~·gws.t8." FINAL DISPO'SITION \ . D REFERENCE ....- . ,..,

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