In bringing a personal injury or medical malpractice action, a plaintiff must disclose medical records which are “material and relevant” to the injuries placed at issue. The Court of Appeals has established that “by bringing or defending a personal injury action in which mental or physical condition is affirmatively put in issue, a party waives the doctor-patient privilege.” Koump v. Smith, 25 N.Y.2d 287(1969), Dillenbeck v. Hess, 73 N.Y.2d 278 (1989).
Defining the Scope of the Waiver of the Privilege
Although plaintiff is not required to lay bare his or her entire medical and/or mental health history, there has been extensive judicial examination of the extent to which plaintiff has waived the privilege, especially where he or she has interposed not only claims for the specific injuries and sequelae directly caused by the subject occurrence, but also broader claims for elements such as loss of enjoyment of life, permanency and lost earnings. The parameters have long differed between the First and Second Appellate Division Departments. The First Department has taken a relatively consistent position that a plaintiff does not necessarily place his or her entire medical history at issue where the claims arise from specific injuries, even if the bill of particulars includes broader allegations such as loss of enjoyment of life. The Second Department has generally taken a different stance.