Dillenbeck v. Hess, 73 N.Y.2d 278 (1989)

A defendant in a personal injury action does not waive the physician-patient privilege merely by defending the action, even if their physical condition is in controversy; waiver occurs only when the defendant affirmatively asserts their condition as a counterclaim or to excuse their conduct.

Summary

In this case, the New York Court of Appeals addressed the scope of the physician-patient privilege in a personal injury action. Plaintiffs sought to compel the defendant to disclose hospital records, alleging that the defendant was intoxicated at the time of the accident. The defendant asserted the physician-patient privilege. The Court held that the defendant did not waive the privilege by simply denying the allegations in the complaint or by asserting affirmative defenses that did not rely on her physical condition. The privilege remains intact unless the defendant affirmatively places their medical condition at issue.

Facts

Tonia Dillenbeck was killed, and her son, Michael Dillenbeck, was seriously injured in a head-on collision with a vehicle driven by Sherry Hess. The plaintiffs alleged that Hess negligently crossed the center line while intoxicated. The accident occurred around 9:45 P.M. Hess sustained serious injuries and was hospitalized. A blood alcohol test was performed at the hospital for diagnostic purposes, but not at the direction of police. Hess denied the allegations and asserted comparative negligence and failure to wear seat belts as affirmative defenses.

Procedural History

The plaintiffs moved to compel the disclosure of Hess’s medical records, including blood alcohol test results. Hess cross-moved for an order of protection, asserting the physician-patient privilege. The Supreme Court denied the plaintiffs’ motion and granted Hess’s cross-motion. The Appellate Division affirmed, holding that Hess had not affirmatively placed her physical condition in issue. The Appellate Division granted leave to appeal to the New York Court of Appeals.

Issue(s)

Whether a plaintiff in a personal injury action can compel a defendant to disclose medical records protected by the physician-patient privilege (CPLR 4504) merely by demonstrating that the defendant’s physical condition is