The Second Department, reversing Supreme Court, determined plaintiff’s motion to compel the defendant-psychiatrists’ depositions should have been granted. Plaintiff, a nurse in a psychiatric facility, was seriously injured in an assault by a patient. She sought to depose the defendant psychiatrists who had treated the patient. Although the defendants may legitimately invoke the doctor-patient privilege, there maybe be non-privileged information which can be the subject of a deposition. The proper procedure is for the defendants to attend the depositions and invoke the privilege where appropriate:
Generally, “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by . . . a party” (CPLR 3101[a]). However, even relevant discovery is subject to preclusion if the requested information is privileged (see CPLR 3101[b] …).
Information relating to the nature of medical treatment and the diagnoses made, including “information communicated by the patient while the physician attends the patient in a professional capacity, as well as information obtained from observation of the patient’s appearance and symptoms,” is privileged and may not be disclosed (… see CPLR 4504; Mental Hygiene Law § 33.13[c] …). However, “[t]he physician-patient privilege generally does not extend to information obtained outside the realms of medical diagnosis and treatment” … .
… [T]he plaintiff is entitled to inquire into any nonprivileged information regarding the patient … . …
… [T]he prospect that a witness may be asked questions at a deposition as to which an objection based on privilege may be asserted is not a proper reason for declining to appear for a deposition. Jayne v Smith, 2020 NY Slip Op 03101,Second Dept 6-3-20