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Sackett v Bayer
2013 NY Slip Op 32847(U)
October 31, 2013
Supreme Court, New York County
Docket Number: 800351/11
Judge: Alice Schlesinger
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Slip Op 30001(U), are republished from various state
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and the Bronx County Clerk's office.
This opinion is uncorrected and not selected for official
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
Index Number : 80035112011
SEQUENCE NUMBER : 001
The following papers, numbered 1 to _ _ , were read on this motion to/for
NotIce of Motion/Order to Show Cause -
Answering Affidavits -
Upon the foregoing papers, it Is ordered that this motion Is (
I No(a) •._ _ _ __
I No(s). - - - - I No(s). - - - - -
Affidavits - Exhibits
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NOV 07 2nt3
COUNTY CLERK'S OFFICE
1. CHECK ONE: .....................................................................
2. CHECK AS APPROPRIATE: ...........................MOTION IS:
3. CHECK IF APPROPRIATE: ................. ...............................
D CASE DISPOSED
0 SETILE ORO ER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MERCEDES SACKETT and ROBERT SACKETT,
NOV 07 2013
COUNTY CLERK'S OFFICE
Index No. 800351/11
Motion Seq. No. 001
-againstMICHAEL BAYER, M.D., PAUL FREUDMAN, M.D.,
and ANESTHESIA PROVIDER, P.C.,
This is a medical malpractice action where counsel for the plaintiff, the moving party
here, states that the sole cause of action is lack of informed consent. 1 Plaintiffs counsel
is asking here for a direction that the defendant Dr. Michael Bayer execute HIPAA and
Arons authorizations for his own medical records and further that he be examined by a
neurologist chosen by plaintiff's counsel.
Some background is necessary before the Court determines how much, if any, relief
should be given to the movant. Dr. Bayer, a gastroenterologist had been the doctor for
plaintiff Mercedes Sackett since 1997.
In that capacity, he had performed several
colonoscopy procedures without event. However, on July 13, 2011, during a colonoscopy
performed by Dr. Bayer. on Ms. Sackett, Dr. Bayer perforated Ms. Sackett's colon. This
perforation led to emergency surgery and other claimed injuries.
'The claim by the plaintiff is that Dr. Bayer did not obtain informed consent from
her to do a colonoscopy because he was obliged to tell her of a tremor that he had
before she consented to this invasive procedure. The doctor's defense is that the
tremor was long-standing and did not in any way affect his ability to perform this
procedure. Therefore, there was no need to include this information before obtaining
Ms. Sackett's consent.
Approximately a month after these events, on August 22, 2011, based on certain
information that Ms. Sackett had obtained concerning a tremor which she learned
Dr. Bayer had, the plaintiff filed a complaint with the New York State Department of Health,
Office of Professional Medical Conduct ("OPMC"). That office then conducted an
investigation. 2 In the course of that investigation, counsel for Dr. Bayer submitted a letter
to OPMC from Harold J. Weinberg, M.D., Clinical Professor Of Neurology at NYU School
of Medicine (Motion, Exh A). The letter stated that Dr. Bayer was Dr. Weinberg's patient,
and then stated that this patient has a "long-standing, stable tremor that is mild to
moderate and does not represent an impediment to his practice as a Gastroenterologist.
It is a benign familial tremor and not Parkinson's Disease"
It is this letter from Dr. Weinberg and how it was used that is the ultimate
determining factor in this Court's decision. The OPMC closed the case against Dr. Bayer
without any further action being taken. (Aff in Opp, Exh H). Following that, on October 16,
2012, the defendantwas deposed. (The transcript of the deposition is attached to the
opposition papers as Exhibit D). At the commencement of that examination, Dr. Bayer's
counsel produced the above-referenced letter dated August 9, 2012, from Dr. Weinberg
that had been sent to the OPMC and had it marked as an exhibit.
In the course of the examination, Dr. Bayer testified that whatever tremor he had, .
had nothing to do with the perforation but rather was caused by Ms. Sackett's pre-existing
adhesions. Further, he stated that he had had these tremors for at least 16 years and that,
Counsel for the plaintiff, motivated perhaps by over-enthusiastic diligence,
arranged for a private investigator to pretend to be a patient of Dr. Bayer's and secretly
videotaped that individual's physical examination and conversations with the doctor.
Arguably, this was done to show that Dr. Bayer hands did shake noticeably. However,
the somewhat questionable investigation will not play any part in this motion.
like Dr. Weinberg, he believed the tremors in no way affected his ability to do his work.
Dr. Bayer, who is now 77 years old, added that, while the condition affects his hands, it
does not affect his arms or any other part of his body.
The issue here is simply whether by producing this letter from Dr. Weinberg to both
OPMC and the plaintiff, Dr. Bayer has waived the physician-patient privilege. After the
deposition, counsel for the plaintiff made the same request to Dr. Bayer's counsel as is the
subject of this motion. Defense counsel declined to produce these authorizations, relying
on the physician-patient privilege which he believed Dr. Bayer had and which further
believed had not been waived.
Surprisingly, there are a number of cases on this issue. From these cases it seems
clear what the standard is when determining if a waiver has occurred. In Dillenbeck v
Hess, 73 NY2d 278 (1989), an issue arose in the course of a civil action involving injuries
from an automobile collision as to whether the defendant, who had earlier been prosecuted
criminally, was obliged to turn over her hospital records containing blood alcohol tests
taken after the accident occurred when she was taken to this hospital. Our highest court
said, "No". The reason for that decision was that the defendant had not attempted to use
her medical information in any kind of affirmative way.
The law on this subject is that if a medical condition has been placed in issue by a
defendant in an attempt to explain or justify his conduct, then a waiver of that medical
condition has occurred. The converse of that is that if a defendant defending a personal
injury action asserts the privilege and has not affirmatively placed his medical condition in
issue, then a waiver has not occurred merely by the plaintiff having placed the defendant's
physical condition in issue.
In other words, it takes some affirmative conduct by the
defendant to cause a waiver of his privilege. For example, in Neferis v. Destefano, 265
AD2d 464 (2nd Dep't 1999), a personal injury action based on an automobile action, the
defendant testified that she had taken certain prescription medications for "nerves" before
the accident. The court found that by giving that information, the defendant had waived the
privilege with regard to those medications.
To make it clear, it is not enough for the defendant's condition to be an issue in the
action. That is one prong that has to be met. But what has to follow is that the defendant
in some way asserts the condition in an affirmative manner, either by asserting a
counterclaim or as an excuse for one's conduct. Doe v. Karpf, 11 Misc.3d 1093(A) (App.
Tm.,1 51 Dep't2006).
Here I find that a waiver has occurred. The letter from Dr. Weinberg was used by
Dr. Bayer both before the OPMC and in the course of discovery in this action at his
deposition to explain his medical condition and to attempt to deny any connection between
that condition and his ability to perform as a doctor. Therefore, I find that Dr. Bayer has
affirmatively placed his medical condition at issue in this case and waived any privilege.
On the basis of this finding, I am directing that Dr. Bayer execute both HIPAA and
Arons authorizations for Dr. Weinberg and any other treaters for the tremor condition
going back three years before the event here in question and continuing through July 13,
2011. That should be done within ten days of the date of this decision. The request for an
examination by a neurologist chosen by plaintiff's counsel is denied. It is now several
years after the event in question and an exam would be invasive and not sufficiently
probative of the doctor's condi!F'il
OCT 3 1 2013
NOV 07 2013
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