L.W. v E.S.
Annotate this CaseDecided on December 7, 2009
Supreme Court, New York County
L.W., Plaintiff,
against
E.S., Defendant.
xx
Attorney for plaintiff:
Chemtob Moss Forman & Talbert
3 East 54th St., 16th Floor
New York, NY 10022
(212) 317-1717
(212) 317-1555
Attorney for defendant:
Dobrish Zeif Gross LLP
757 Third Avenue
New York, NY 10016
(212) 532-4000
fax: (212) 532-3153
Deborah A. Kaplan, J.
In this action for divorce and ancillary relief, the defendant-husband (hereinafter "husband") moves for an Order permitting him to depose the treating therapist of the plaintiff-wife (hereinafter "wife"), Dr. E.C., and authorizing the issuance of a Subpoena Duces Tecum to be served upon Dr. C. instructing her to disclose all of her notes to counsel for the husband regarding her treatment of the wife. The wife opposes the motion claiming that it has no basis in law or in fact. She also cross-moves for various relief which is addressed in this Court's decision on Motion Sequence 003.
It is the husband's position that given the wife's allegations, which he contends are false, that he abused the parties' son and repeatedly raped her, he has "no choice as a loving, responsible father but to ask that the Court order [the wife's] psychiatrist of 15 years, Dr. C., to turn over the notes and records of L's extensive psychiatric treatment and that my attorneys be [*2]allowed to take Dr. C.'s deposition regarding her treatment of [the wife] prior to any trial in this case." According to the husband, he does not seek to hurt the wife, but, rather, wants to help his son. He states that he could not in good faith agree to any final custody arrangement, nor should the Court make a custody determination, without more information regarding the wife's psychological condition, which, he contends, has allowed her to level these vicious accusations at him. Moreover, Dr. C., the husband states, is the person with the most information about the wife's medications and how her condition "can be kept in check and how it could potentially worsen over the next 16 crucial and formative years of [the child's] life."
According to the husband, when he first married the wife he was unaware that she had a condition that required extensive psychological treatment. In fact, he claims that the wife would see Dr. C. 18 times per month and even spoke with the therapist regularly during the parties' honeymoon. However, it was not until the parties went through the in vitro fertilization process that the husband says that he learned that the wife had been prescribed different types of medication throughout the years and was currently taking 5 milligrams of Valium twice a day. In addition, it is the husband's belief that the wife has paranoid tendencies evidenced by her telling her attorney who then relayed it to the Court that she was being followed by a van and that a man was taking photographs of her in the park.
In opposing the husband's motion, the wife points out that the husband has failed to provide any authority which supports his request. While she acknowledges that the parties have put their respective mental conditions at issue by contesting custody, she argues that this does not mean that either party is entitled to pretrial discovery regarding the other's mental health history. Rather, she states that pretrial review of the parties' mental conditions and parenting ability is precisely the reason why a neutral forensic evaluator is appointed for custody disputes as one has been appointed in this action.
The wife also contends that it was the husband who repeatedly lost touch with reality, "erupting into screaming tirades that our housekeeper was trying to poison him; he often repeatedly screamed that someone was trying to kill him in the shower through poisonous gas being fed through the water lines; he fired our baby nurse in the middle of the night. . ., claiming she was trying to hurt our son's penis; he became hysterical when our son flushed the toilet without shutting the lid because poisonous vapors escaped through the toilet; he wrote notes about time travel; he insisted that someone was defecating on our towels even though they were clean; [and] he told our son in front of me that he was capable of killing me just as the character in a movie they were watching had killed his wife. . . ." Additionally, she annexes to her papers affidavits from two individuals who witnessed some of the acts of which she accuses the husband and which describe other allegedly idiosyncratic behavior on the husband's part. She further alleges that during the marriage the husband sexually, verbally and emotionally abused her, causing her love for him to turn to fear. Notably, she does not controvert the husband's allegations in connection with Dr. C.
It is well established that pretrial disclosure of privileged medical records is limited, especially in a custody litigation given the sensitive nature of the issues involved and the potential for the abuse of such discovery. See, e.g., Ferguson v. Ferguson, 2 Misc 3d 277 (Supreme Court, Nassau County 2003); Garvin v. Garvin, 162 AD2d 497 (2nd Dept. 1990); Coderre v. Coderre, 1990 WL 312774. As the Coderre, supra , court noted, since the wholesale pretrial discovery of the medical records of one party does not provide any mechanism to ensure that only relevant and [*3]material confidential information is disclosed, these records may contain communications that are "embarrassing, humiliating, potentially damaging and totally irrelevant to the issue of present and future parental fitness."
However, privileged information may be disclosed "where it is demonstrated that the invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody. . . ." State ex rel. Hickox v. Hickox, 64 AD2d 412 (1st Dept. 1978) citing, Perry v. Fiumano, 61 AD2d 512 (4th Dept. 1978).Accordingly, this department has adopted a policy which requires that a party's medical records be reviewed by the Court and that only portions of the records deemed to be relevant and material, if any, be disclosed. Hickox, supra . This policy was recently reaffirmed in the case of Penny B. v. Gary S., 61 AD3d 589 (1st Dept. 2009), wherein the court held on the father's petition for an award of custody, that the court had acted properly when it conducted an in camera review of the notes of the husband's therapist and determined that it was unnecessary to release them or for the therapist to testify since the court had sufficient information about the father from other sources.
Based on the foregoing, the Court finds that under the circumstances here an in camera review of Dr. C.'s notes and records concerning the wife is appropriate. Accordingly, Dr. E.C. is directed to produce to the Court all of her notes and records regarding the treatment of the wife for in camera inspection. Such production shall be made no later than January 8, 2010. Upon review, the Court shall disclose any portion of the material which it deems to be material and necessary for the purpose of determining custody of the parties' child. The husband's application to depose Dr. C and his request that the Court authorize the issuance of a Subpoena Duces Tecum to be served on her instructing that she disclose all of her notes to counsel for the husband regarding her treatment of the wife is denied.
Therefore, upon the facts presented and the applicable law, it is hereby:
ORDERED, that the husband's application permitting his counsel to depose the wife's treating physician and authorizing the issuance of a subpoena duces tecum to be served upon the therapist instructing her to disclose all of her notes to counsel regarding her treatment of the wife is granted to the extent of ordering the therapist to produce all of her notes and records regarding the treatment of the wife to the Court on or before January 8, 2010.
ORDERED, that Counsel for the husband shall serve a copy of the within Decision upon counsel for the wife with notice of entry, within ten (10) days of entry.
This constitutes the Decision and Order of the Court.
E N T E R:
________________________
HON. DEBORAH A. KAPLAN
J.S.C.
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