In any New York medical malpractice lawsuit, certain information will be protected from disclosure based on a privilege afforded by the law. For example, there is certain information that is privileged under New York Public Health and Education laws, and a defendant can refuse to produce information under the privilege. If the defendant waives the privilege, however, it loses the right to argue that the protected information cannot be used as evidence. Recently, a New York court discussed the standards of reviewing privilege and waiver in a radiology malpractice case. If you suffered harm because of inappropriate radiological care, it is critical to speak with a knowledgeable Syracuse radiology malpractice attorney regarding the circumstances surrounding your harm and what compensation you may be able to recover.
Facts and Procedures of the Case
Allegedly, the plaintiff’s decedent presented to the defendant hospital for a CT guided needle biopsy to be performed by the defendant radiologist. The defendant physician mistakenly placed the biopsy needle in the decedent’s aorta, ultimately resulting in her untimely death. The plaintiff’s estate filed a radiology malpractice lawsuit against the defendants. During discovery, plaintiff’s counsel sought to depose a neurologist who examined the defendant radiologist for the purposes of determining his mental and physical capacity and competence in rendering care. The neurologist also produced a written report of his findings. The defendants filed a motion for a protective order, arguing that the neurologist’s testimony and report were privileged. The trial court granted the motion and the plaintiffs appealed.
Privilege in Medical Malpractice Cases
The court noted that the testimony and report were privileged under Public Health Law § 2805–m(2) and Education Law § 6527(3). The court stated, however, that when a party discloses a privileged document it typically waives the privilege unless the party intended for the document to remain confidential and took reasonable steps to prevent its disclosure. The court indicated that in the subject case, the document was originally disclosed by the examining neurologist in a different lawsuit. The defendant’s act of filing the report in the other lawsuit, however, permitted the report to be disclosed to the public at large. Specifically, the court noted that the defendant did not file the report under seal or take any other steps to prevent its disclosure. Thus, the court found that the defendant had waived the statutory privilege by disclosing the report. As such, the court reversed the trial court ruling.