Shanahan v. BambinoShanahan v. Bambino
—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of Supreme Court, Orange County (Peter C. Patsalos, J.), dated May 17, 1999, which granted the separate motions of the defendants Nicholas Bambino and Irving Bough for protective orders, inter alia, prohibiting the plaintiffs from acquiring pathology tissue from the defendant Cornwall Hospital for testing.
Ordered that the order is reversed, on the law, with costs, the motions are denied, and the defendant Cornwall Hospital is directed to provide the plaintiffs with the pathology tissue for testing provided that the resulting slide is made available for examination by the respondents.
The plaintiffs contend, inter alia, that the respondents committed medical malpractice by misdiagnosing the condition of the plaintiff Marie Shanahan as Crohn’s disease instead of amoebic colitis. In furtherance of that claim, the injured plaintiff contacted the defendant Cornwall Hospital to determine if she could acquire a “recut” of the remaining biopsied specimen, which was preserved, in order to conduct a “stain” test. The plaintiffs maintained that this particular stain test should have been conducted originally by the respondents for a proper diagnosis to be made. The respondents sought a protective order from the court precluding the recutting of the original specimen arguing, inter alia, that to do so would force them to improperly create evidence not in existence at the time of the alleged malpractice.
Given the liberal interpretation of the rules of disclosure, an item of arguable relevance should be disclosed (see, Allen v Crowell-Collier Publ. Co.,