Opinion
June 1, 1982
In a medical malpractice action, plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Linakis, J.), entered September 25, 1981, as, upon the motion of defendants Warren, Metropoulos and Warren Metropoulos, P.C., struck the conditions in plaintiffs' authorizations for the release of medical records. Order modified, by deleting the provision which struck all conditions and substituting therefor a provision striking the condition beginning with the words "This authorization is contingent upon" and ending with the words "furnished to the above." As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiffs' time to furnish authorizations is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. Respondents moved to dismiss the complaint when served with requested authorizations that contained typewritten or rubber-stamped indorsements conditioning disclosure by the medical providers on their furnishing a copy of all such disclosed materials to plaintiffs' counsel. Special Term properly found such condition to be impermissible; however, notwithstanding the lack of any objection to the remainder of the indorsements, Special Term's order also struck a warning that the authorizations were not intended to permit the provider to discuss plaintiffs' case, but only to furnish copies of existing records. This warning was surplusage. Whether the medical provider authorizations were requested pursuant to CPLR 3120 (see Matter of Lachman, 19 Misc.2d 540; Matter of Rubin, 161 Misc. 374) or (as is more typical) pursuant to CPLR 3121 (see Hoenig v Westphal, 52 N.Y.2d 605, 609), it is settled in this department that the evidence subject to discovery by means of either device is limited to pre-existing tangible items (see Anker v Brodnitz, 98 Misc.2d 148, affd 73 A.D.2d 589 [on opn of Boyers, J., at Special Term] mot for lv to app dsmd 51 N.Y.2d 743; Slavenburg Corp. v. North Shore Equities, 76 A.D.2d 769; cf. Matter of Mulvaney v. Dubin, 80 A.D.2d 566, revd on other grounds 55 N.Y.2d 668; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3102:1, p 260; and C3120.1, p 516). Nevertheless, mindful of the practical problem discussed in Anker v. Brodnitz ( supra) respecting the ability of recipients of such authorizations to distinguish between properly and improperly disclosable evidence, we are of the opinion that the warning indorsed on plaintiffs' authorizations in this case serves a salutary purpose and should be reinstated. We note further that, as discussed in Anker v. Brodnitz ( supra), these limits on disclosure are imposed not because of the physician-patient privilege, which is generally waived by bringing a malpractice action, but by the very design of the specific disclosure devices available in CPLR article 31. We modify the order accordingly. Gulotta, J.P., O'Connor, Thompson and Brown, JJ., concur.