Mother in Birth Defect Medical Malpractice Suit Need Not Disclose Records of Six Prior Pregnancies

Case: Farkas v. Orange Regional Medical Ctr.

Court: Supreme Court, Appellate Division, Second Department, New York

Date: 7/18/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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Facts: This case presents a medical malpractice action by a mother for her daughter's birth defects. At an in-court discovery conference the mother was ordered to provide authorizations for medical records for her pregnancies with her six children born before the daughter that is a plaintiff in this lawsuit.

What happened next ?

The plaintiffs decided that they didn't like this discovery order, and made a motion to the court to relieve them from having to provide the mother's pregnancy records for her last six children. Maybe the judge forced this provision upon them at the in-court conference; maybe the plaintiffs' attorney who appeared in court unwisely agreed to this discovery item.

The lower court vacated (cancelled) this part of the discovery against plaintiffs, holding that the mother didn't have to provide records or her last six (prior) pregnancies. The defendants appealed the Court's order.

Held: A lawsuit plaintiff who puts their medical or physical condition into the case must make disclosure. However, in this case the defense made an initial showing of relevance of the material sought, but the mother still has a right to her physician-patient privilege of confidentiality as to these records because they were matters before the period of the pregnancy behind the lawsuit.

Thus, the confidentiality of the mother's prior medical records is upheld and the lower court is affirmed in this appeal. However, the appeals court notes that at trial the mother may not introduce evidence on subjects as to which she has asserted her physician patient privilege of confidentiality.

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