Fisher v. Grad

Bernstein, J. There is an apparent conflict of authority in the cases reported in this department on the question of allowance of examinations before trial in actions based on malpractice. Several of the cases are cited as authority for refusing such examinations. (Bush v. Krauskopf, 229 App. Div. 843; Daranowitz v. Burdick, 244 id. 715.) Others are pointed to as indicating a tendency to allow them in certain circumstances. (Laurino v. Pratt, 222 2 App. Div. 742; Schonhous v. Weiner, 138 Misc. 759; Weiner v. Hass, Inc., 158 id. 181.) An analysis of these cases and of many others decided at Special Term leads to the conclusion that the policy of limitation apparently favored in this department is simply a policy of discretion, and that in a proper case, where special or unusual circumstances are present, such examinations may be allowed. The discretion to be exercised must be guided by the need to effect justice. In the instant case the condition of the plaintiff during the operation precludes her from having knowledge of the facts. She has no witnesses of her own. Unless she can elicit the necessary proof of the alleged malpractice from the defendants, she cannot recovet, no matter how meritorious her claim may be. These circumstances are special and unusual. They warrant the court to exercise a sound discretion and permit an examination in the interests of justice. Such examination will be allowed as to both defendants at Special Term, Part II of this court, on August 21, 1939, at ten a. m., each of them to be examined separately and the examination of one to be concluded before the examination of the other is proceeded with. The defendant hospital shall be examined by an officer or employee having knowledge of the facts. Relevant books, papers and records are to be produced for use on such examination in accordance with section 296 of the Civil Practice Act.