Legal Alerts

New York Court of Appeals: Defendants Can Now Obtain Medical Records for Injuries Not Alleged in Bill of Particulars

New York, N.Y. (September 12, 2019) - We are pleased to report a significant Court of Appeals decision on the scope of the physician-patient privilege in New York that we anticipate will impact discovery disputes and cross-examination at trial going forward. This successful appeal was handled by New York Trial & Appellate Partners Nicholas P. Hurzeler and Sydney S. Sanchez.

In Brito v. Gomez, 2019 NY Slip Op 06452 (2019), decided on September 10, 2019, the New York Court of Appeals, the state’s highest court, unanimously reversed a split panel of the Appellate Division, First Department, and granted our motion to compel discovery related to a plaintiff’s pre-accident bilateral knee surgeries.

Generally, the physician-patient privilege shields disclosure of medical discovery unless it is placed “in controversy” in the litigation. In Brito, the plaintiff only claimed injuries to her spine and left shoulder as a result of a motor vehicle accident. During discovery, it emerged that plaintiff had undergone bilateral knee surgeries only a few years before the accident. The plaintiff claimed that she was unable to work as a result of the motor vehicle accident and could no longer engage in numerous activities of daily living, such as dancing. However, the extent to which the plaintiff’s claimed disabilities were caused by the accident or the prior knee surgeries was unclear.

Accordingly, we moved to compel the prior medical records in order to cross-examine the plaintiff at trial on the issue of injury causation. The lower court denied the motion. On appeal, the First Department issued a 37-page decision with three justices in the majority and two dissenting. The decision highlighted a split between the Appellate Division’s First and Second Departments as to the scope of the physician-patient privilege in this context.

The First Department then granted our motion for leave to appeal to the Court of Appeals, which unanimously ruled in our favor, reversing the First Department’s decision. The Court of Appeals rejected the First Department’s reasoning that, among other things, a plaintiff could avoid having to disclose the records by the simple expedient of omitting the previously-affected body parts from the bill of particulars.

The defense bar throughout New York can cite this case as precedent on this issue going forward, which frequently arises in the course of discovery, in pre-trial motion practice, and at trial in the context of admissibility and cross-examination. We anticipate that this clear statement by the Court of Appeals, in a unanimous decision, will help us obtain favorable results on this issue going forward. It can be cited in future cases to compel disclosure whenever pre-accident treatment impacts a claim for lost wages, daily activities, or loss of enjoyment of life. It can also arguably be used to support the admissibility of these records for cross-examination purposes. Finally, we anticipate this decision will be included in the next edition of New York’s Pattern Jury Instructions.

If you have any questions about this or any other New York trial or appellate matter, please do not hesitate to contact the authors of this alert.


Nicholas P. Hurzeler, Partner

Sydney S. Sanchez, Partner

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