Zimmerman v. Nassau HospitalZimmerman v. Nassau Hospital
In a medical malpractice action, defendants Nassau Hospital and Leonard L. Ostreich sеparately appeal from so much of (1) an order of the Supreme Court, Nassau County, datеd December 13, 1979, as denied their motions to compel plaintiffs to provide them with authorizations to obtain certain medical records, and (2) a further order of the same court, dated February 20, 1980, аs denied their motions to renew or reconsider the original determination. Order dated Decembеr 13, 1979 reversed insofar as appealed from, and motions granted. Plaintiff shall furnish the authorizations within 20 days after service upon them of a copy of the order to be made hereon together with notice of entry thereof. Appeal from the order dated February 20, 1980 dismissed. Appellants are аwarded one bill of $50 costs and disbursements payable by plaintiffs. The infant plaintiff was treated by appellants shortly after his premature birth in 1962. As part of their care of the infant, they administered oxygen therаpy which allegedly resulted in a condition of retrolental fibroplasia, a condition of the еye resulting in legal blindness. Soon after this time, and in the first year of the infant’s life, his parents contacted an attorney who, in turn, referred them to an ophthalmologist, Dr. Gerald Kara. Dr. Kara conducted two examinations of the infant, including one performed under anesthesia because of the pain associated with such an examination. Dr. Kara also prescribed eyeglasses for the infant. It should bе noted that the attorney was present during both visits to Dr. Kara; however, no litigation was commencеd at the time. In fact, this action was not begun until 1974, some Í2 years later, after the plaintiffs had moved to California and sought and retained counsel in that State. The New York attorney had never been formаlly retained by the Zimmermans. Appellants now seek to obtain the medical records of Dr. Kara and of the New York Eye & Ear Infirmary, where the procedure was performed. In the order of December 13, 1979, Special Term denied the appellants’ applications. This was error. The basis of Sрecial Term’s conclusion is that the materials sought by appellants constitute either an attorney’s work product or material prepared for litigation and, as such, enjoy immunity from disclosure by virtuе of CPLR 3101 (subds [c], [d]). This status is conferred by Special Term upon the records in question by virtue of the involvement оf the attorney in New York. At the outset, we note that the burden of demonstrating that particular recоrds are immune from discovery is on the party asserting such immunity. This burden is so placed by virtue of the strong policy in favor of full disclosure. (Koump v Smith, 25 NY2d 287, 294.) Thus, in the present case it was incumbent upon the plaintiffs to prove that thе disputed records should be held immune from discovery, and the mere assertion that they