EVEN THOUGH DEFENDANT’S PHYSICAL CONDITION WAS IN CONTROVERSY, DEFENDANT DID NOT WAIVE THE PHYSICIAN-PATIENT PRIVILEGE WITH RESPECT TO THE MEDICAL RECORDS CONCERNING SEXUALLY-TRANSMITTED DISEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not waive the physician-patient privilege and, therefore, plaintiff was not entitled to defendant’s medical records which relate to sexually-transmitted disease:

“A party seeking to inspect a defendant’s medical records must first demonstrate that the defendant’s physical or mental condition is ‘in controversy’ within the meaning of CPLR 3121(a)” … . “Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and thus exempt from disclosure pursuant to CPLR 3101(b)” … . Once the physician-patient privilege is validly asserted, it must be recognized, and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (see CPLR 3101[b]; * * *

… [I]n order to effect a waiver, a defendant must affirmatively assert the condition ‘either by way of counterclaim or to excuse the conduct complained of by the plaintiff'” … . * * *

The record was insufficient to establish that the defendant voluntarily disclosed any information to the plaintiff or other third parties which would have served as a waiver of privilege … . Hausman v Smith, 2023 NY Slip Op 04457, Second Dept 8-30-23

Practice Point: Even where a party’s physical condition is in controversy, the physician-patient privilege may preclude discovery of medical records concerning a condition which was not affirmatively asserted by that party.