112 A.D.2d 297 | N.Y. App. Div. | 1985
In an action to recover damages for medical malpractice, plaintiff appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated April 12, 1984, which, inter alia, denied his motion to vacate a prior precalendar conference order which had directed him to provide defendants with duly executed authorizations permitting them to obtain obstetrical records of the infant plaintiff’s mother, a nonparty to the action.
Order affirmed, with one bill of costs.
In this medical malpractice action brought on behalf of the plaintiff, Paul Yetman, by his father Harold Yetman, it is alleged that as a result of the negligence of the defendant doctors and hospital in the prenatal, labor and delivery and postnatal care of the infant plaintiff and his mother Nancy Yetman, the infant plaintiff suffered severe and irreparable injury, including permanent damage to his central nervous system. Based upon certain information obtained from the infant plaintiff’s medical records regarding his mother’s history of unsuccessful pregnancies, defendants sought to depose plaintiff’s mother and obtain written authorizations for medical records relating to her other pregnancies. Plaintiff and his mother opposed defendants’ request on the ground that such information was protected by the physician-patient privilege and, as a nonparty, the mother had not waived that privilege by placing her medical condition in issue. Following a precalendar conference, by order dated January 9, 1984, Special Term directed the mother to appear for examination and to provide medical authorizations for the obstetrical records of her pregnancies. Plaintiff then moved, inter alia, to vacate the order. Special Term denied this application, whereupon plaintiff took the instant appeal. We now affirm that determination.
Initially, we would point out that although precalendar conference orders are not appealable to this court as of right (CPLR 5701 [a] [2]), an appeal does lie from an order entered, as here, upon a formal motion on notice to vacate or modify such an order or particular provisions thereof (Cohalan v Johnson Elec. Constr. Corp., 105 AD2d 770).
On the record before us, however, we conclude that the plaintiff’s mother has waived her physician-patient privilege as to her other pregnancies. We base our conclusion, in part, upon the fact that the mother, prior to the commencement of this litigation, revealed her past medical history, and, in particular, her history of numerous miscarriages, to various physicians for the purpose of aiding in the treatment of the infant plaintiff during the years subsequent to his birth. Significantly, this information was furnished by the mother, not in confidence with respect to treatment being provided to her, but rather in connection with the treatment of the infant plaintiff. Moreover, in her affidavit in support of the instant
We have examined plaintiffs other contentions and find them to be without merit. Accordingly, we affirm Special Term’s order. Mangano, J. P., Brown, Rubin and Lawrence, JJ., concur.