Opinion
July 11, 1983
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Moule and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: Special Term properly denied defendant's motion to compel plaintiff to authorize production of her attending physicians' records, reports, bills, notes and memoranda. We do not read Hoenig v Westphal ( 52 N.Y.2d 605) as requiring disclosure of the items sought by defendant. In each of the two cases decided in Hoenig, defendant sought the reports of plaintiffs' attending physicians. Plaintiffs resisted on the ground that, inasmuch as no exchange of medical information had been requested, reports were not required under CPLR 3121 (subd [b]) which, they contended, was the exclusive mechanism for discovery of medical reports. The Court of Appeals refused to interpret the disclosure provisions of CPLR article 31 so narrowly and held that, even when reports are not required under CPLR 3121, their disclosure is required under CPLR 3101 (subd [a]), which provides for "full disclosure of all evidence material and necessary in the prosecution * * * of an action". The question of discoverability of a doctor's records, as opposed to his reports, was not presented. We are mindful that Pizzo v Bunora ( 89 A.D.2d 1013) and Ryan v Haskell ( 86 A.D.2d 935) held that physician's office notes and records are discoverable under the authority of Hoenig; nevertheless, we believe there is a significant difference between a physician's reports and his records and that Hoenig does not compel production of the latter. We merely note that plaintiff has conceded that defendant is entitled to her X rays.