![]() ![]() The primary care physician’s records should include a general history of the plaintiff’s health and any pre-existing medical conditions. Should the plaintiff allege “loss of enjoyment of life” in the Bill of Particulars, the defendants are entitled to the plaintiff’s primary care physician’s records, as this claim places the entirety of the plaintiff’s condition in question. The Court’s decision in Gumbs is in direct opposition with the Second Department, which freely allows discovery concerning the nature and extent of the injuries claimed in cases where “loss of enjoyment of life” is alleged. Schiavone is clearly distinguishable from Gumbs, where the plaintiff did in fact allege loss of enjoyment of life. As the plaintiff did not allege “loss of enjoyment of life” in his Bill of Particulars, the additional discovery was deemed overbroad and unduly burdensome. Instead, the Bill of Particulars alleged only specific injuries to the injured plaintiff’s left knee, and the plaintiff provided authorizations for the release of the pertinent medical files. In Schiavone, the injured plaintiff did not place his entire medical condition in controversy with broad allegations of physical injury and mental anguish in the Bill of Particulars. ![]() The holding in Schiavone is inappropriately relied upon by the First Department. The Court held that the plaintiff did not place his entire medical condition in controversy by suing to recover damages for orthopedic injuries, citing the Second Department case of Schiavone v Keyspan Energy Delivery NYC, 89 AD3d 916. The defendants served demands for the plaintiff’s cardiologist as well as his primary care physician based on the plaintiff’s allegations in his Bill of Particulars that he was unable to work as well as alleged “loss of enjoyment of life.” In Gumbs, the plaintiff sustained a torn rotator cuff, a fractured ankle and other orthopedic injuries. The First Department found that the defendants had not shown that the records sought were related to the claimed injuries. Flushing Town Ctr.III, L.P., 2014 NY Slip Op 01267, the First Department upheld a decision denying the defendants’ motion to compel authorizations based on the plaintiff’s claims for “loss of enjoyment of life” and past pain and suffering.
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