When it comes to the discovery process in New York, probably the most frequently invoked word in decisions by judges is “ liberal ,” as in, New York favors a liberal, open-ended exchange of information among parties to a lawsuit. And this is with good reason. Justice is better served when the parties are better educated about each other's claims and defenses, and as a positive byproduct, suprises at trial are less likely to occur.
So imagine my surprise when I saw a slip opinion written by the Appellate Division, Fouth Department, that ignored this principle completely. In Petrovets v. Thorpe , NY Slip Op 08806 (4th Dept. 2008), decided on November 14th, the Court refused to allow the plaintiff in a car-accident case to obtain authorizations for records of the ophthalmologist who performed cataract surgery on the defendant driver, reasoning that “[b]y merely denying plaintiff's allegations that she was negligent, defendant did not waive the physician-patient privilege or affirmatively place her medical condition in controversy.”
While all of that may be true, it is also irrelevant. On the other hand, the defendant's ability to see, or not see, would certainly shed some light on defendant's liability, and whether she had any business driving a car (defendant was 86 years old at the time of the accident). The Court would only allow plaintiff to obtain the dates on which the defendant underwent the cataract surgeries, because that information was not “subject to any privilege.” Sorry, Fourth Department, but that information is too important under these cirmcumstances to remain protected by doctor-patient privilege. You made the wrong decision. If the 86-year-old defendant has trouble seeing, and allegedly causes an accident, she has de facto “affirmatively placed her medical condition in controversy.”
Speaking of privilege, another new case contains a warning about lawyers' use of email. In First American Commercial Bancorp, Inc. v. Saatchi & Saatchi Rowland, Inc., et al. , NY Slip Op 08786 (Fourth Dept. 2008), decided November 14th, the Court found that email communications between Saatchi and its attorneys that were for a business purpose, but in which legal advice was neither sought nor given, were not protected by the attorney-client privilege.
And now we leave law behind and jump to what I believe may be a new category in our literature, MEDICAL MALPRACTICE FICTION . In the November 30, 2008, NY Times Book Review , we learn that author Kirsten Menger-Anderson has written a novel entitled, “Doctor Olaf Van Schuler's Brain,” described by the Times' reviewer as “fiction about a long line of quack doctors in pursuit of spontaneous combustion, animal magnetism, lobotomies and more.” Francesca Mari's review makes the book sound whimsical and inviting, so, if you don't have enough real medical malpractice in your life, grab this book!