In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, according to the Pattern Jury Instructions (PJI) 2:280, is “pain and suffering of which there was some level of awareness by the plaintiff”. Loss of enjoyment of life, according to the PJI, includes the “loss of the ability to perform daily tasks, to participate in the activities which were a part of the person’s life before the injury, and to experience the pleasures of life”. The threshold of “some level of awareness” in order to recover under the law had to be set by the Court of Appeals for purposes of simplicity.
When a person brings a personal injury case, he or she waives the physician-patient privilege as to mental or physical injuries or conditions, but only as to those that are affirmatively put in issue by him or her in the lawsuit. The party seeking the disclosure of mental or physical health information (defense counsel) bears the burden of making an evidentiary showing that the condition is in controversy and discovery may proceed under the statute. Defense counsel will ordinarily not be able to show entitlement to discovery of a medical file pertaining to treatment for an injury to the cervical spine in 2008 when the plaintiff is making a claim for a 2011 foot fracture.
What if a plaintiff claims that she suffers from anxiety as a result of a fractured foot that occurred in a 2011 accident? Does it render her complete file of psychiatric records discoverable? Or what if she claims that she lost the enjoyment of her life as a result of the fractured foot she sustained in the 2011 accident? Does this claim render her entire physical and mental medical file discoverable?
The Court of Appeals ruled that pain and suffering awards are connected to loss of enjoyment of life awards rather than separately compensable claims. Furthermore, mental suffering may not be considered a distinct claim from physical pain and suffering. As of today, however, the Court of Appeals has yet to rule on precisely what types of health records the plaintiff waives by bringing these types of claims.
The Appellate Division of the First Department (which encompasses New York County and Bronx County) held, in 1998, that psychiatric records are not admissible where the plaintiff claims loss of enjoyment of life but withdraws emotional and psychological damage claims. J. Michael D. Stallman of the New York Supreme Court held that claims of pain and suffering, anxiety, and mental anguish resulting from the physical effects of an injury, such as neurological issues consisting of severe headaches, migraines, dizziness, and vertigo, do not qualify as claims that place mental condition at issue. The plaintiff’s claims seem to need to rise to the level of separate and independent emotional or psychological damage claims. Yet, the plaintiff may be restricted from testifying at trial about other emotional or psychological specie such as being “upset”, and directed to focus only on the physical effects of the injury when there are no separate emotional or psychological damage claims and disclosure of the psychiatric file.
The Appellate Division of the Fourth Department (which covers areas of western and northern New York), has given somewhat conflicting views. On the one hand it held in 2009 and 2010 that a plaintiff may safely allege the loss of enjoyment of life without waiving the privilege of his or her complete medical history. However, the 2009 case, Tabone v. Lee, 59 A.D.3d 1021, 873 N.Y.S.2d 401 (4th Dep’t 2009) cited to a 1998 case wherein the Appellate Court affirmed a lower court order directing the plaintiff to exchange names and authorizations for all of medical providers who treated him in the five years before the date of the subject accident. Additionally, in camera review was ordered in the 2009 and 2010 cases to allow the Court to review a complete copy of medical records before possibly ordering the exchange of some of them.
Is there overlap between any specie of emotional or psychological damage and mental suffering? Until the Court of Appeals rules on the issue, the extent of the overlap and the waiver effected by a loss of enjoyment claim will be a bit convoluted.
Resources:
Burden of Proof: Enjoyment of Life, David Paul Horowitz, September 2010 NYSBA Journal
This entry addresses general matters and should not be relied on by readers or considered legal advice.
