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Circumstances Warranted Overcoming Physician-Patient Privilege—Substantive Explanation of the Privilege and Its Application (Including When a Court May Decline to Enforce It)

In a medical malpractice case, the plaintiff sought logs from the defendant-hospital which described the surgical procedures done by defendant surgeon during the times of plaintiff’s surgeries. The plaintiff sought to demonstrate the surgeon was doing too many procedures in too short a time to have properly performed them.  Although the hospital produced the logs, the information describing each procedure was redacted. Plaintiff’s motion to compel was denied by Supreme Court, which held the information about surgeries on non-party patients was privileged. The Second Department reversed.  Although the information was deemed privileged by the Second Department, the information could properly be discovered because it was “material and necessary” to the plaintiffs’ case and the privacy of the non-party patients could be protected by redaction.  The facts presented a situation where the court could properly decline to enforce the privilege. The Second Department provided a substantive explanation of the physician-patient privilege and its application:

… CPLR 4504(a) … provides that “[u]nless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity” (CPLR 4504[a]…).

The enactment of the statutory physician-patient privilege “was based on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment” … . “The privilege applies not only to information communicated orally by the patient, but also to information obtained from observation of the patient’s appearance and symptoms” …. “Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient’s medical files or is sought to be introduced at trial in the form of expert testimony” … .

“That which the privilege seeks to protect, however, and thereby foster, are confidential communications, not the mere facts and incidents of a person’s medical history” … . The statute “is not intended to prohibit a person from testifying to such ordinary incidents and facts as are plain to the observation of any one without expert or professional knowledge” … . Accordingly, although the privilege protects a patient from the disclosure of a communication made to a doctor, “a witness may not refuse to answer questions regarding matters of fact . . . merely because those topics relate to events that required medical care or advice from a physician” … .

Furthermore, “where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation” … . Accordingly, “courts may properly decline to enforce the physician-patient privilege where its invocation does not serve its policy objectives” … .

However, even where redaction of identifying information will ensure that the policy objectives of CPLR 4504(a) are not subverted, disclosure of otherwise privileged information should not be permitted where it is not “material and necessary in the prosecution or defense of [the] action” (CPLR 3101[a][1]…). Here, although the listing of each surgical procedure … was privileged under CPLR 4504(a) …, the plaintiff established that the subject information is indeed “material and necessary” (CPLR 3101[a]) in the prosecution of the action, and that the circumstances warrant overcoming the privilege … .Cole v Panos, 2015 NY Slip Op 04269, 2nd Dept 5-20-15

 

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Sua Sponte Dismissal for Lack of Standing Improper—Defense Waived by Failure to Answer—Lack of Standing is Not a Jurisdictional Defect

The Second Department, in a mortgage foreclosure proceeding where defendants did not answer, determined the complaint should not have been dismissed sua sponte for lack of standing.  Because the complaint was not answered, the lack-of-standing defense was waived.  In addition, lack-of-standing is not a jurisdictional defect warranting sua sponte dismissal:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and the cancellation of the notice of pendency. Since the defendants did not answer the complaint and did not make pre-answer motions to dismiss the complaint, they waived the defense of lack of standing … . In any event, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . US Bank Natl. Assn. v Flowers, 2015 NY Slip Op 04308, 2nd Dept 5-20-15

 

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Deliberate Joinder of Claims for Legal and Equitable Relief Arising from the Same Transaction Constitutes a Waiver of the Right to Demand a Jury Trial

The Second Department noted that the deliberate joinder of claims for legal and equitable relief arising from the same transaction constitutes a waiver of the right to demand a jury trial. In addition, the court dismissed the aspect of the appeal for which the relevant portions of the record were omitted from the appendix. With respect to the contents of the appendix submitted on appeal, the Second Department wrote:

” An appellant who perfects an appeal by using the appendix method must file an appendix that contains all the relevant portions of the record in order to enable the court to render an informed decision on the merits of the appeal'” … . “The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent” (22 NYCRR 670.10-b[c][1]; see CPLR 5528[a][5]). Here, the plaintiff omitted material excerpts from the transcripts of trial testimony and critical exhibits she relies on in seeking review of the dismissal of her disability discrimination cause of action. These omissions inhibit this Court’s ability to render an informed decision on the merits of the appeal … . Accordingly, the appeal from so much of the judgment as is in favor of the defendants and against the plaintiff, in effect, dismissing the second cause of action must be dismissed. Zutrau v ICE Sys., Inc., 2015 NY Slip Op 04479, 2nd Dept 5-1715

 

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Excessive Intervention and Improper Conduct of Judge Required New Trial in Medical Malpractice Case

The Second Department reversed and sent a medical malpractice case back for retrial on liability because of the excessive intervention and improper conduct by the trial judge.  The Second Department wrote:

…[T]he trial justice’s excessive intervention in the proceedings, as well as the cumulative effect of the trial court’s improper conduct, deprived the plaintiff of her right to a fair trial (see CPLR 5501[a][1]; 4017…). “[A]ll litigants, regardless of the merits of their case, are entitled to a fair trial” …. A trial justice plays a “vital role in clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” but that “power is one that should be exercised sparingly” …. Accordingly, a trial justice may not ” so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice'” … .

A trial justice must maintain an atmosphere of impartiality. Here, while the plaintiff’s counsel may have been overly aggressive, and at times even antagonized the trial justice, nonetheless, a trial justice should ” at all times maintain an impartial attitude and exercise a high degree of patience and forebearance’ “…. Indeed, our review of the record convinces us that the repeated conflict between the court and the plaintiff’s counsel, at all phases of the trial-and often times in the presence of the jury-unnecessarily injected personality issues into the case, which militated against a fair trial. The trial justice demonstrated a propensity to interrupt, patronize, and admonish the plaintiff’s counsel, and gave the plaintiff’s counsel significantly less leeway with regard to examination and cross-examination of witnesses than that which was afforded the defendants’ counsel. *  *  *

Under the circumstances of this case, by virtue of the cumulative effect of the improper conduct of the trial justice, the plaintiff was deprived of a fair trial. As a result, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner ….  Porcelli v Northern Westchester Hosp, 2013 NY Slip Op 03467, 2nd Dept 5-15-13

 

 

 

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For Purposes of CPLR 205 (a) (Allowing the Commencement of a New Action within Six Months of the Termination of a Prior Action) a Prior Action Terminates When a Nondiscretionary Appeal Is “Exhausted,” Even If the Appeal Is Dismissed As Abandoned

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that the six-month period for commencing a new action after the termination of a prior action afforded by CPLR 205 (a) runs from the termination of an appeal, even if the appeal is dismissed as abandoned. Here the plaintiff started an action in federal court which was dismissed by District Court.  Plaintiff then appealed as of right to the Second Circuit.  The appeal was dismissed for failure to file the brief and appendix.  Plaintiff, before the federal appeal was dismissed, started an action in state court. The state court action was started more than six months after the District Court had dismissed the federal action and defendants moved to dismiss the state action under CPLR 205 (a).  The Court of Appeals held that the CPLR 205 (a) six-month period did not start running until the federal appeal was dismissed.  Therefore the state action was timely commenced:

In its current form, CPLR 205 (a) provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” * * *

… [T]his Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by … holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned. Malay v City of Syracuse, 2015 NY Slip Op 04164, CtApp 5-14-15

 

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In Extraordinary Circumstances, Testimony by Two-Way Video Conference Can Be Used In Mental Hygiene Law Article 10 Proceedings

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that the judge in a Mental Hygiene Law article 10 proceeding has the discretion, in extraordinary circumstances, to allow testimony by electronic appearance (live two-way video conference). Here, however, the respondent objected to the procedure and the State did not demonstrate the requisite extraordinary circumstances.  The error  was deemed harmless however:

…[W]e hold that permitting the two-way, live video testimony … was within the discretion of the court. As we have previously explained, “[l]ive televised testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Televised testimony requires a case-specific finding of necessity; it is an exceptional procedure to be used only in exceptional circumstances” … . … [Here} [p]ermitting [the witness] to deliver her testimony via video conference over respondent's objection without requiring a proper showing of exceptional circumstances was error. Matter of State of New York v Robert F., 2015 NY Slip Op 04162, CtApp 5-14-15

 

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“Lack of Capacity to Sue” Defense Waived If Not Raised in Pleadings/Court Should Not Have Decided Summary Judgment Motion by Searching the Record and Ruling On Issues Not Raised by Anyone

In the context of a suit alleging conversion stemming from the handling of an estate, the Second Department determined the “lack of capacity to sue” defense had been waived because it was not raised by defendant in his pleadings.  The court further determined Surrogate’s Court exceeded its powers when it went beyond the issues placed before it plaintiff’s summary judgment motion, searched the record and decided the motion in defendant’s favor on grounds not raised by anyone:

[The defendant] waived the defense of lack of capacity by failing to raise such defense in a pre-answer motion to dismiss or in his answer to the amended complaint in the action (see CPLR 3211[e]…).

… [O]n a motion for summary judgment, the court is limited to the issues or defenses that are the subject of the motion before the court … . “A motion for summary judgment on one claim or defense does not provide a basis for searching the record and granting summary judgment on an unrelated claim or defense” … .

The Surrogate’s Court improperly searched the record and awarded summary judgment to [defendant] dismissing objections 1(i) and 9. [Plaintiff] moved for summary judgment on these objections solely on the grounds that he established that [defendant] converted funds from the father’s estate and failed to account for funds that the estate owed to [plaintiff]. [Defendant] did not cross-move for summary judgment dismissing those objections on the basis of the statute of limitations, nor did he argue it in opposition. In view of the limited scope of [plaintiff’s] motion, it was not appropriate to search the record and award summary judgment to [defendant] dismissing these objections upon arguments that were not raised … . Matter of Ray C., 2015 NY Slip Op 04134, 2nd Dept 5-13-15

 

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A Conditional Judgment May Be Rendered On the Issue of Contractual Indemnity—The Party Seeking Contractual Indemnity Must Be Free from Negligence

Plaintiff was injured at a construction site when he fell from a ladder. The construction manager commenced a third-party action against the general contractor seeking contractual indemnification in the event the construction manager is liable to the plaintiff,. The Second Department noted that a ” ‘court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action so that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed’ … . The party seeking contractual indemnification must establish that it was free from negligence and that it may be held liable solely by virtue of statutory or vicarious liability …”. Arriola v City of New York, 2015 NY Slip Op 04079, 2nd Dept 5-13-15

 

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Denial of Plaintiff’s Motion to Intervene in a Foreclosure Action Did Not Prohibit, Under the Doctrine of Collateral Estoppel, the Plaintiff’s Action to Be Declared the Owner of the Subject Property/A Person With an Interest in Real Property Who Is Not Joined in a Foreclosure Action Is Unaffected by the Judgment of Foreclosure

The Second Department, reversing Supreme Court, determined that plaintiff’s (Jamison’s) action to declare her the owner of property subject to foreclosure should not have been dismissed under the doctrine of collateral estoppel.  Plaintiff’s ownership of the property had not been determined in the foreclosure action in which she unsuccessfully sought to intervene.  In addition, a person with an interest in real property who is not joined in a foreclosure action remains unaffected by the judgment of foreclosure:

The doctrine of collateral estoppel bars relitigation of an issue which has been necessarily decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling … . The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action, and is determinative in the present action … . Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination … .

Here, the bank failed to establish that the issue of whether Jamison has an interest in the subject property had already been decided, since the order it relied upon expressly provided that no determination had made by the court with respect to the issue of whether or not Jamison was a necessary or indispensable party, and Jamison’s motion to intervene as of right in the foreclosure action was denied without explanation. In any event, where a person with an interest in real property is not joined as a party to an action to foreclose a mortgage on that property, that person’s rights are left unaffected by the judgment of foreclosure and sale, and the foreclosure sale may be considered void as to the omitted person … . Accordingly, Jamison’s interest, if any, in the subject property was neither litigated nor determined in the foreclosure action, and the order denying her motion to intervene as of right in the foreclosure action was not an adjudication of her rights on the merits. Jamison v Aquai, 2015 NY Slip Op 04097, 2nd Dept 5-13-15

 

Leave to Amend Complaint Should Have Been Granted—Criteria Explained

The Second Department determined Supreme Court should have allowed plaintiff to amend the complaint. Leave to amend should only be denied if the added causes of action are patently insufficient or devoid of merit.  Defendant would suffer no prejudice or surprise:

“In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Under this standard, a party seeking leave to amend a pleading need not make an evidentiary showing of merit … , and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt … . * * * …[The] proposed causes of action are neither patently insufficient nor palpably devoid of merit. Moreover, the parties against whom those causes of action are sought to be asserted will not suffer undue prejudice or surprise resulting directly from the plaintiff’s delay in seeking to amend the complaint … . Stein v Doukas, 2015 NY Slip Op 04115, 2nd Dept 5-13-15