In most personal injury cases it is not unusual for documents to be granted a protective order based upon physician-patient privilege. However, the courts are reluctant to offer protection of materials, which are key to the defense of a lawsuit. This is particularly true when parties to litigation are attempting to claim privilege for documents that would not naturally fall under that protection. The court is weary of medical professionals who abuse this privilege for their own financial gain.
Sindey Rubin and his Wife Lucille Munion, appealed an order from the Supreme Court of Nassau County which directed them to release their medical practice’s financial records to opposing counsel. Mr. Rubin alleged he was struck and seriously injured by a vehicle rented from the defendant, Alamo Rent-A-Car. After initiating a lawsuit to recover for his personal injury, Rubin amended his complaint to include his wife as a party to the suit and to include damages for loss of business income as a second cause of action.
In his amended complaint Rubin alleged that he was a medical ophthalmic technologist and he assisted his wife in her ophthalmological practice. Rubin claimed that as a result of the accident he was unable to perform his duties resulting in a loss of earnings to himself and to the medical practice. Rubin was compensated for his services not with a salary, but through a shared interest in the income of medical practice. Opposing counsel sought billing and other financial information from the couple’s practice to establish what loss of earnings the medical practice suffered and if the losses were attributable to Rubin’s injuries. The couple moved for a protective order, claiming that the production of documents would violate the physician-patient privilege. The Supreme Court ordered Rubin and Munion to produce the requested files after they redacted protected patient information. The judge required the couple to pay for the costs of redaction and reproduction of the discoverable documents.
On appeal, the Appellate Court held that the Supreme Court’s order for disclosure was proper because the request for disclosure is for nonmedical information not related to the diagnosis or treatment of patients and the request for a limited period of time. The Appellate court did reverse the holding that the plaintiffs were responsible for the costs of redaction and reproduction of discovery documents. In reversing, the court cited the holding in Rosado v. Mercedes-Benz of N. Am. 03 AD2d 395, 398 “[E]ach party should shoulder the initial burden of financing his own suit, and based upon such a principle, it is the party seeking discovery of documents who should pay the cost of their [reproduction].”
Courts will not permit parties to use the protections that have been built into the legal system to create a shield from all aspects of discovery. Rubin could not both claim a financial loss from his injuries and prevent Alamo’s attorney from securing evidence that would either support or refute that claim. Patient-physician privilege is meant to create a level of trust between a patient and his doctor so that the patient can freely discuss medical concerns without fearing embarrassment or legal ramifications. To use this mechanism as a shield for financial records is distorting and abusing the intent of the rule.
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November 3, 2011 at 4:53 PM
I can see how financial records are not protected under the patient-client privilege, however, making the person who possess the documents edit them to remove the names of patients makes no sense at all. This is information they didn’t want to share in the first place, and they have to pay to maintain the patient-client privilege? The court is absolutely right in requiring the requesting party to fund the reproduction.