New York Medical Malpractice Lawyer Convinces Court to Order Disclosure of Doctors' Personal Notes Claimed Privileged

In a medical malpractice lawsuit brought against a major NYC-based cancer center, New York Supreme Court Justice orders the disclosure of documents, which, the hospital's doctors argued, were privileged and immune from disclosure.

NEW YORK, New York, August 24, 2009 – In a complex medical malpractice lawsuit, the New York County Supreme Court Justice Joan Lobis ordered the defendants, a major NYC-based cancer center and two of its interventional radiologists, to disclose their personal notes made after performing a surgical procedure on Mr. B.¹, a World War II veteran, who died approximately 24 hours after the procedure was performed.

According to the complaint, on July 31, 2006, the two doctors performed a percutaneous alcohol injection on Mr. B., injecting 108 cubic centimeters of pure alcohol into Mr. B.'s liver to treat his recently diagnosed liver cancer. It is alleged in the lawsuit that Mr. B., almost immediately after the procedure was completed, began exhibiting signs and symptoms of ethanol toxicity. By mid afternoon of August 1, 2006, Mr. B. died from alcohol poisoning.

When Daniel J. Woodard, plaintiff's medical malpractice lawyer from Levy Phillips & Konigsberg, LLP, a New York City based law firm specializing in medical negligence cases and catastrophic personal injury litigation, discovered the existence of documents written by the defendant interventional radiologists concerning Mr. B.'s procedure and his death, which were not a part of the patient's medical records, he promptly sought an order from the Court compelling the defendants to produce these documents.

Defendants argued that these documents were protected under various privileges, including the attorney-client privilege, the Quality Assurance Privileges set forth in New York's Public Health Law, and the anticipation of litigation privileges. Despite these arguments, plaintiff's medical malpractice lawyer was able to persuade the Court that these privileges were not applicable to this matter.

These privileges have historically been used by doctors and hospitals to prevent important and relevant documents concerning incidences and admissions of medical negligence from disclosure to the families of those victimized by such careless acts and to the attorneys who represent them.

In total, Judge Lobis ordered the disclosure of five separate documents. The documents relate to the amount of alcohol used on Mr. B., an important issue to plaintiff's case.

When questioned at a deposition about these documents, one of the defendant doctors and his attorney attempted to shield additional information in these documents from disclosure, including the name of a doctor who had notified the Office of the Medical Examiner of the City of New York about Mr. B.'s death. The defendants attempted to assert the attorney-client privilege as to this highly relevant additional information.

On April 30, 2010, plaintiff's medical malpractice lawyers from Levy Phillips & Konigsberg, LLP, prevailed again before the Court and persuaded the Court to order that the attorney-client privilege, one of the most sacred privileges, was not applicable to this matter and that the defendants must disclose the name of the doctor who had notified the Medical Examiners Office of Mr. B.'s death.

Every year, tens of thousands of people nationwide lose their lives due to doctor negligence and hospital malpractice. The complaint in this case alleges that Mr. B., an American war hero, was taken before his time due to the negligence of his doctors. Then, when these doctors attempted to prevent the disclosure of critical documents, which were not made a part of the medical record, Levy Phillips & Konigsberg, LLP, was able to force their disclosure through the civil justice system.

¹ Names of parties withheld due to ongoing legal proceedings.

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