Professional Negligence Law Reporter

Abdullahi v. Shenoy, 2019 WL 2896788 (N.Y. App. Div. July 5, 2019).

A New York appellate court held that a hospital defendant’s disclosure of a written report on the neurological examination of one of its physicians constitutes a waiver of the statutory privileges outlined in N.Y. Pub. Health Law §2805-m (2) and N.Y. Educ. Law §6527(3).

Here, the estate of a former patient sued a hospital and radiologist Sadashiv Shenoy for medical negligence. The hospital sought a protective order to prevent a nonparty physician, Robert Sawyer Jr., from testifying about his written report arising from his neurological examination of Shenoy. The trial court granted the motion, holding the testimony was privileged under the public health and education laws.

The appellate court held that the defendant hospital had waived the statutory privilege regarding the written report and that the trial court had abused its discretion in granting the defense motion regarding Sawyer’s testimony. Citing case law, the court found that disclosing a privileged document, such as the written report at issue here, generally waives the privilege unless a client intended to retain confidentiality and took steps to prevent disclosure. Here, the court found, Shenoy had disclosed Sawyer’s written report in a prior lawsuit, and the hospital made no attempt to have the document filed under seal, thus permitting disclosure to the general public. Thus, the court concluded that by allowing this disclosure, the defendant hospital intentionally relinquished its statutory privilege regarding the report.

Plaintiff counsel: John A. Collins, Buffalo, N.Y.