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Doe v. G.J. Adams Plumbing4/8/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The Plaintiff moves for a protective order, requesting that certain allegedly irrelevant medical information be redacted from his/her records, and that only the redacted records be supplied to the Defendants.
The Plaintiff was injured in an ATV accident. Plaintiff alleges in of his/her complaint that Plaintiff sustained "a serious injury as defined in Insurance Law §5102". Without further limitation, this may include injuries which will persist for some time into the future and/or are permanent.
The Plaintiff has been HIV positive since 1995. Plaintiff moves to seek the redaction of his/her medical records to eliminate reference to that fact. The Defense has not received any formal notice of Plaintiff's status and can and does only object generally to the application. The Court does not know if the Defendant has learned from the Plaintiff, or otherwise, of this health condition.
The Plaintiff has put his/her physical condition in controversy by alleging injuries and demanding compensation therefore. By so doing, Plaintiff waives his/her confidentiality, but only as to those medical matters relevant to the controversy. By placing one's condition in controversy one is not thereby required to sign a "blank check" for medical records' disclosure. Carter v Fantauzzo 256 AD2d 1189, 684 N.Y.S.2d 384 [4th 1998]:
A plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that his physical or mental condition is affirmatively placed in controversy (see, Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457; McGuane v M.C.A., Inc., 182 AD2d 1081, 1082). That waiver, however, "does not permit wholesale discovery of information regarding the protected party's physical and mental condition. The waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments" (Iseman v Delmar Medical-Dental Bldg., 113 AD2d 276, 279).
Preliminarily, it is hereby ORDERED
1) that all pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the instant application or the decision thereon, are to be sealed and not made available to any person, except to the extent necessary to conduct any proceedings in connection with the determination of whether to grant or deny the application, including any appeal.
2) It is further ORDERED that all subsequent proceedings in connection with this application shall be conducted in camera, and the County Clerk's file shall be delivered to this Court for immediate redaction and confidentiality protection.
3) It is further ORDERED that, where appropriate to prevent the unauthorized disclosure of confidential information, any pleadings, papers, affidavits, judgments, orders of the court, briefs and memoranda of law which are part of the instant application or the decision thereon shall not state the name of the Plaintiff, which shall be redacted therefrom, but rather the Plaintiff is given anonymous status and hereafter shall be referred to as Ann Doe in all situations in this proceeding.
4) It is further ORDERED that neither the content and nature of Plaintiff's condition nor the specific statutory article relied upon here, i.e., Public Health Law Article 27F nor this Decision and Order itself is permitted to be disclosed to any person
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