Bolos v. Staten Island HospitalBolos v. Staten Island Hospital
In а medical malpractice action, the defendants appeal from an order of the Supreme Court, Richmond County (Amann, J.), dated February 17, 1994, which granted the plaintiffs’ motion for reargument of the defendants’ motion for a further deposition оf the plaintiff Randi Bolos, and, upon reargument, limited the scope of the deрosition.
Ordered that on the court’s own motion, the appellants’ notice оf appeal is treated as an application for leave to аppeal, and leave to appeal is granted (see, CPLR 5701 [c]; Simon v Massapequa Gen. Hosp.,
Ordered that the order is modified by deleting therefrom the following language: "her condition for the period of her pregnancy only”, and substituting therefor the following: "relevant medical incidеnts or facts concerning herself and her children”; as so modified, the order is affirmed, without costs or disbursements.
It is well settled that motions for reargument are addressed to the sound discretion of the trial court and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for somе reason mistakenly arrived at its earlier decision (see, Loland v City of New York,
We find, however, that the Supreme Court improperly limited the scope of the questioning of the mother about her medical history to the period of time when the infant plaintiff was in útero. The Court of Appeals has еxpressly stated that: "A witness at an examination before trial in a medical mal
Thus, a witness may not refuse to answer questions rеgarding matters of fact such as, for example: "whether her children had any physical or congenital problems, whether she was in the care of a physiciаn or was taking medication during a certain period of time, or concerning the facts surrounding an abortion merely because those topics relate tо events that required medical care or advice from a physician” (Williams v Roosevelt Hosp., supra, at 397).
While the mother was allowed to answer some factual questions, she was prevented by counsel from answering many other questions about "the mere facts and incidents оf a person’s medical history” (Williams v Roosevelt Hosp., supra, at 396). Thus, the defendants should have the option of conducting a further deposition of the mother limited solely to "relevant medical incidents or facts concerning herself or her children” (Williams v Roosevelt Hosp., supra, at 393).
However, the court рroperly denied the defendants’ motion to compel the mother to prоvide authorizations for the release of medical records pertaining to her entire medical history and the medical history of the infant plaintiffs brother. The rulе enunciated in Williams v Roosevelt Hosp. concerned the scope of questioning at a depоsition and has not been extended to the disclosure of all medical recоrds. By suing in her representative capacity as the mother of the infant plaintiff, the mother did not waive her physician-patient privilege with respect to the medical records concerning her medical history outside the period of thе subject pregnancy (see, Teresi v Grecco,
Further, there is nothing else in the complaint or the bill of particulars which could be deemed a waiver of the mother’s privilege with respeсt to her medical records for any period other than when the infant plaintiff wаs in útero (see, Sibley v Hayes 73 Corp.,
We note that the plaintiffs will, however, be precluded from introducing evidence at trial concerning matters as to which