         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
452
CA 10-01936
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


JOYCE A. GOETCHIUS, INDIVIDUALLY AND AS EXECUTOR
OF THE ESTATE OF JAMES J. GOETCHIUS, DECEASED,
PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

PERRY J. SPAVENTO, M.D. AND MOUNT ST. MARY’S
HOSPITAL OF NIAGARA FALLS, DEFENDANTS-RESPONDENTS.


BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (JOHN M. VISCO
OF COUNSEL), FOR DEFENDANT-RESPONDENT MOUNT ST. MARY’S HOSPITAL OF
NIAGARA FALLS.

BROWN & TARANTINO, LLC, BUFFALO (TAMSIN J. HAGER OF COUNSEL), FOR
DEFENDANT-RESPONDENT PERRY J. SPAVENTO, M.D.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered June 22, 2010 in a medical
malpractice and wrongful death action. The order granted defendants’
motion to compel.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second ordering
paragraph and granting the motion by directing plaintiff to submit to
Supreme Court a certified complete copy of decedent’s collateral
source records from Community Blue and as modified the order is
affirmed without costs, and the matter is remitted to Supreme Court,
Niagara County, for further proceedings in accordance with the
following Memorandum: In this wrongful death action based upon
defendants’ alleged medical malpractice, plaintiff appeals from an
order granting defendants’ motion seeking, inter alia, to compel
plaintiff to provide an authorization to obtain the records of the
physician who performed bypass surgery on her husband (decedent)
approximately seven years before his death, as well as the records of
the hospital where the surgery took place, and to provide an
authorization for the release of collateral source records from
decedent’s health insurance carrier, Community Blue. We conclude at
the outset that, although plaintiff is not seeking damages for medical
expenses incurred on behalf of decedent, the records from decedent’s
health insurance carrier are nevertheless “material and necessary” to
the defense of this action (CPLR 3101 [a]), inasmuch as they may
                                 -2-                           452
                                                         CA 10-01936

contain information “reasonably calculated to lead to relevant
evidence” (Grieco v Kaleida Health [appeal No. 2], 79 AD3d 1764,
1765). Indeed, the records are likely to include the names of
decedent’s medical providers and prior medical conditions that may be
relevant to the defense of this action. We further conclude, however,
that Supreme Court erred in directing plaintiff to provide an
authorization permitting the release of those records to defendants.
Rather, they should be reviewed by Supreme Court in camera so that
irrelevant information is not disclosed to defendants (see Tirado v
Koritz, 77 AD3d 1368, 1369; see generally Tabone v Lee, 59 AD3d 1021,
1022; Mayer v Cusyck, 284 AD2d 937). We therefore modify the order
accordingly.

     We reject plaintiff’s contention that the court erred in
directing her to provide defendants with information relating to
decedent’s bypass surgery. It is well settled that “[a] party must
provide duly executed and acknowledged written authorizations for the
release of pertinent medical records when that party has waived the
physician-patient privilege by affirmatively putting his or her
physical or mental condition in issue” (Weber v Ryder TRS, Inc., 49
AD3d 865, 866). Considering that the autopsy report listed
arteriosclerotic coronary disease as one of the causes of decedent’s
death and that decedent’s life expectancy is at issue, information
with respect to the bypass surgery is relevant to this action or, at
the very least, is reasonably calculated to lead to relevant evidence.
We reject the further contention of plaintiff that defendants’
informal request for such information constituted an interrogatory,
which would not be permitted where, as here, the defendants have also
served a demand for a bill of particulars and a notice of intention to
depose the plaintiff (see CPLR 3130 [1]).




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
