![]() If you are rich, the pecuniary claim may be large, but if you are not, then you may be as we lawyers like to say, shit out of luck. My first post was in 2017, but a version of the bill has bounced around Albany for 30 years.īy way of brief background, for those too lazy to hit the link above, in a wrongful death case in New York there is a claim for monetary loss – be it lost wages or even the economic value of cooking and cleaning that one household member might perform.īut there is little monetary claim over the loss of a child, or a retired parent, or a disabled family member. ![]() Sydney S.I’ve written before about the Grieving Families Act, a badly needed update to New York’s wrongful death statute that dates to 1847. If you have any questions about this or any other New York trial or appellate matter, please do not hesitate to contact the authors of this alert. Finally, we anticipate this decision will be included in the next edition of New York’s Pattern Jury Instructions. It can also arguably be used to support the admissibility of these records for cross-examination purposes. It can be cited in future cases to compel disclosure whenever pre-accident treatment impacts a claim for lost wages, daily activities, or loss of enjoyment of life. We anticipate that this clear statement by the Court of Appeals, in a unanimous decision, will help us obtain favorable results on this issue going forward. The defense bar throughout New York can cite this case as precedent on this issue going forward, which frequently arises in the course of discovery, in pre-trial motion practice, and at trial in the context of admissibility and cross-examination. ![]() The Court of Appeals rejected the First Department’s reasoning that, among other things, a plaintiff could avoid having to disclose the records by the simple expedient of omitting the previously-affected body parts from the bill of particulars. ![]() The First Department then granted our motion for leave to appeal to the Court of Appeals, which unanimously ruled in our favor, reversing the First Department’s decision. The decision highlighted a split between the Appellate Division’s First and Second Departments as to the scope of the physician-patient privilege in this context. On appeal, the First Department issued a 37-page decision with three justices in the majority and two dissenting. However, the extent to which the plaintiff’s claimed disabilities were caused by the accident or the prior knee surgeries was unclear.Īccordingly, we moved to compel the prior medical records in order to cross-examine the plaintiff at trial on the issue of injury causation. The plaintiff claimed that she was unable to work as a result of the motor vehicle accident and could no longer engage in numerous activities of daily living, such as dancing. During discovery, it emerged that plaintiff had undergone bilateral knee surgeries only a few years before the accident. In Brito, the plaintiff only claimed injuries to her spine and left shoulder as a result of a motor vehicle accident. Generally, the physician-patient privilege shields disclosure of medical discovery unless it is placed “in controversy” in the litigation. Gomez, 2019 NY Slip Op 06452 (2019), decided on September 10, 2019, the New York Court of Appeals, the state’s highest court, unanimously reversed a split panel of the Appellate Division, First Department, and granted our motion to compel discovery related to a plaintiff’s pre-accident bilateral knee surgeries. This successful appeal was handled by New York Trial & Appellate Partners Nicholas P. (September 12, 2019) - We are pleased to report a significant Court of Appeals decision on the scope of the physician-patient privilege in New York that we anticipate will impact discovery disputes and cross-examination at trial going forward. New York Court of Appeals: Defendants Can Now Obtain Medical Records for Injuries Not Alleged in Bill of Particulars
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