Amendolare v Druz

[*1] Amendolare v Druz 2006 NY Slip Op 51617(U) [12 Misc 3d 1198(A)] Decided on July 14, 2006 Supreme Court, New York County Bransten, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2006
Supreme Court, New York County

Mirna Amendolare, Plaintiff,

against

Ari A. Druz, D.D.S., Defendant.



114785/04

Eileen Bransten, J.

Pursuant to CPLR 3121(b) and 22 N.Y.C.R.R. 202.17, defendant Ari A. Druz, D.D.S. ("Dr. Druz") moves to compel plaintiff Mirna Amendolare ("Ms. Amendolare") to produce "detailed written reports of the findings and conclusions of the examining dentists who 1) provided her with an expert affirmation in support of her opposition to [defendant's] motion for summary judgment and 2) was the subject of her deposition testimony in which she stated that she was examined by an expert in 2005; or, in the alternative, precluding the plaintiff from calling either of these examining dentists as an expert witness at the time of trial." Order to Show Cause, at 1.

Background

In this dental malpractice actioncommenced in October 2004Ms. Amendolare alleges that Dr. Druz negligently provided her with dental care and did not properly obtain her informed consent.

On October 29, 2004, Dr. Druz served Combined Demands, seeking disclosure of, among other things: "A copy of the dental or medical reports of those dentists or physicians who have previously treated or examined the plaintiff for the same or similar condition involved herein;"A copy of the dental or medical reports of those dentists or physicians who have [*2]treated or examined the plaintiff for the same or similar condition involved herein subsequent to the alleged malpractice herein."

Affirmation (in Support) ("Supp."), at ¶ 4.

At Ms. Amendolare's June 20, 2005 examination before trial, her attorney disclosed that "she's been seen by an expert to consult with me." Supp., Ex. C, at 71. Plaintiff's counsel elaborated that Ms. Amendolare had been examined but no report was prepared. Id. Ms. Amendolare testified that she saw the dentist one time and was told that the "gums are bad" and that she would need additional gum treatments. Id., at 73. She recalled informing the dentist that she was not happy with the way her mouth looked but did not remember anything else about her visit with the expert. Id., at 74.

Additionally, in response to Dr. Druz's motion for summary judgment (which was denied on July 10, 2006), Ms. Amendolare relied on an affirmation from the same dentist who had examined her in 2005 and confirmed that she was suffering from early periodontal disease. Supp., Ex. D, at 7-8. After receiving the affirmation, defense counsel requested production of the dentist's report. Ms. Amendolare's attorney reiterated that no report had been prepared.

Dr. Druz never demanded a physical examination of Ms. Amendolare pursuant to CPLR 3121.

Dr. Druz now moves, pursuant to CPLR 3121(b) and 22 N.Y.C.R.R. 202.17, for production of "a copy of a detailed written report by all examining physicians setting out their findings and conclusions." Supp., at ¶ 8. He argues that the CPLR mandates disclosure of the expert's report and asks alternatively for an Order "precluding the plaintiff from calling these examining dentists as expert witnesses at the time of trial." Supp., at 5. Ms. Amendolare responds that "a dental expert [examined] plaintiff, so that his opinions on liability and damages might be properly informed by the exam." Affirmation in Opposition, at 1. She urges that by seeking production of a report from the dental expert consulted, Dr. Druz is trying to circumvent CPLR 3101(d), which authorizes parties to "omit the names of * * * dental experts." See. CPLR 3101(d)(1)(i).[FN1] Ms. Amendolare further sets forth that a different expert was retained for trial; therefore, instead of having a report prepared, plaintiff would prefer preclusion of the expert who examined her in 2005 from testifying at trial.

On reply, Dr. Druz asserts that plaintiff should be compelled to turn over a report rather than being precluded because counsel "should not be allowed to have the plaintiff examined by an expert and then, after learning that the expert's findings and conclusions are not advantageous to his case, refuse to disclose the expert's report, claiming that [there is] no requirement to do so" since another expert will testify at trial. Reply Affirmation, at ¶ 7.

Analysis

CPLR 3121(a) authorizes any party to serve "notice on another party to submit to a physical, mental or blood examination by a designated physician" in actions "in which the mental or physical condition or the blood relationship of a party" is in controversy. CPLR 3121(b), in turn, allows any [*3]party to obtain "a copy of a detailed written report of the examining physician setting out [any] findings and conclusions" provided that the requesting party exchanges "therefor a copy of each report * * * of an examination made with respect to the * * * physical condition in controversy." See also, Hoenig v. Westphal, 52 NY2d 605, 610 (1981) ("Subdivision [b] quite simply makes discoverable from a person requesting an examination material otherwise not discoverable").

Significantly, "CPLR 3121(b) works in the following manner. The examining physician will ordinarily draw up a report of the examination in behalf of E, the party at whose behest the examination took place. If any other party, O, wants a copy of that report, O can get it by tendering copies of any medical reports that O has with respect to the medical or physical condition in controversy. The option is with O. If O wants a copy of E's report, O requests the exchange and tenders his own report. If O doesn't, he just refrains from making the request and tender. According to CPLR 3121(b), the examining party, E, may not initiate the exchange request.[FN2] * * *"CPLR 3121 and its exchange requirements do not apply to attending physicians, as opposed to physicians retained exclusively for expert testimony in conjunction with litigation. Hoenig v. Westphal, 52 NY2d 605, 439 N.Y.S.2d 831 (1981). * * * Hence the requirement of an exchange offer that in essence restricts disclosure under subdivision (b) of CPLR 3121 has no bearing on the report of a physician who actually attended the plaintiff. That physician's report is discoverable by the defendant under CPLR 3101(a) without reference to any exchange request. * * * Thus, the plaintiff must surrender the report or authorization to obtain the records [of an attending physician'] even if * * * not demanding a copy of the defendant's expert's report in return. Hoenig holds that the attending physician does not fall under CPLR 3121(a), which is concerned only with a physician retained as an expert for the litigation. The exchange provision in CPLR 3121(b) relates to reports of examinations conducted pursuant to CPLR 3121(a). Therefore, CPLR 3121(b) is inapplicable to the report of an attending physician. The report of an attending physician obviously has more than a mere litigation function. Therefore, as Hoenig observes, the immunity that CPLR 3101(d)(2) confers on material prepared for litigation does not generally extend to reports concerning medical history diagnosis and treatment. That immunity only covers a product prepared exclusively for litigation, not one that has mixed motives. * * * Hence the report of an attending physician, enjoying neither an exchange-connected restriction from CPLR 3121(b) nor a litigation-material immunity from CPLR 3101(d)(2), gets a clean trip into the hands of an opposing party whenever it is demanded."[*4]

Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3121:8 (emphasis added); see also, Siegel, NY Prac § 348, at 559 (CPLR 3121[b] directs the exchange of medical reports in certain instances), § 363, at 601 (4th ed.); 6 Weinstein-Korn-Miller NY Civ. Prac. ¶ 3121.18 (A "party who has demanded the report of his own physical examination by the other party's examining physician may not refuse to exchange the reports of other examinations of himself upon the ground that the physician was retained by him as an expert and examined him solely in preparation for litigation").

Here, because a CPLR 3121(a) examination of Ms. Amendolarethe party whose physical condition is in controversy was never performed at Dr. Druz's request, CPLR 3121(b) is altogether inapplicable. CPLR 3121(b) does not unilaterally obligate plaintiff to have her own examining-expert dentist, who will not testify at trial, prepare a detailed report for defendant's benefit. Contrast, Moreno v. Greater New York Dental Administrators, 120 AD2d 343 (1st Dept. 1986) (plaintiff, who was physically examined on behalf of the moving defendant and received a copy of defendant's physician's report, required to produce report from consultant, non-treating physician who would not testify at trial); see also, Diamantstein v. Friedman, 199 AD2d 458, 459 (2d Dept. 1993) (22 N.Y.C.R.R. 202.17[b] held inapplicable where defendant never sought to examine plaintiff, but nonetheless, attempted to obtain a copy of a nonexistent medical report since "the rule contemplates a reciprocal exchange").

Indeed, if the examining dentist prepared a report at plaintiff's attorney's request and there is absolutely no evidence that a report was in fact generatedit would be material "prepared in anticipation of litigation or for trial" (see, CPLR 3101[d][2]) and CPLR 3121(b) only gives a party "a right to discovery not otherwise available" in conjunction with invocation of CPLR 3121(a). See, Hoenig v. Westphal, 52 NY2d, at 610.

Cases cited by Dr. Druz do not compel a different result. See, e.g., Hoenig v. Westphal, 52 NY2d 605 (1981) (report of attending physician who treated plaintiff discoverable pursuant to CPLR 3101 and is not limited by the exchange provision of CPLR 3121); Pierson v. Yourish, 122 AD2d 202 (2d Dept. 1986) ("Following the defendant's exchange of the reports of his examining physician * * * plaintiffs were obligated to exchange a copy of each report"); Comunale v. Sealand Contractors Corp., 2 Misc 3d 672 (Sup. Ct. Monroe Cty. 2004) (plaintiff entitled to written report from physician hired by defendant to perform physical examination regardless of whether a report was initially prepared or whether the physician would testify at trial); Lebowitz v. Cinberg, 94 Misc 2d 872 (Sup. Ct. New York Cty. 1978) (preparation and exchange of reports required as defendant's doctor examined plaintiff and plaintiff sought report pursuant to CPLR 3121[b]).

In sum, Dr. Druz has not established entitlement to creation and disclosure of a report by plaintiff's expert examining dentist who will not be called to testify at trial.

Accordingly, it is

ORDERED that defendant's motion to compel production of an examination- report by a non-treating physician retained by plaintiff as an expert is DENIED. It is further

ORDERED that the parties are to appear for trial on August 2, 2006, at 9:30 a.m.

This constitutes the decision and order of the Court.

Dated: New York, New York

July ___, 2006 [*5]

E N T E R

Hon. Eileen Bransten Footnotes

Footnote 1: Ms. Amendolare does not explain why she would be unable to produce a report with the examining dentist's name redacted. Had defendant conducted a CPLR 3121 physical examination of plaintiff, the exchange of a redacted report would be required.

Footnote 2: But see, Moreno v. Greater New York Dental Administrators, 120 AD2d 343 (1st Dept. 1986) (plaintiff, who received a report from defendant's examining physician, obligated to produce own examining physician's report despite "strategic decision not to request an exchange of medical information").