Kohn v. Fisch

—In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), dated June 30, 1998, as denied that branch of his motion which was to compel production of the injured plaintiffs psychiatric records. Ordered that the order is affirmed insofar as appealed from, with costs. It is well settled that a party waives the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue (see, Cynthia B. v New Rochelle Hosp. Med. Ctr., 60 NY2d 452, 456-457; Prink v Rockefeller Ctr., 48 NY2d 309; Koump v Smith, 25 NY2d 287; Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539). However, a party does not waive the privilege with respect to unrelated illnesses or treatments (see, Sadicario v Stylebuilt Accessories, 250 AD2d 830; Zappi v Pedigree Ski Shop, 244 AD2d 331). In the instant case, the Supreme Court properly determined that the injured plaintiffs psychiatric records were not subject to disclosure once the injured plaintiff withdrew his claims based upon psychological injuries (see, Strong v Brookhaven Mem. Hosp. Med. Ctr., 240 AD2d 726). Mangano, P. J., Santucci, Krausman, Florio and H. Miller, JJ., concur.