Dillenbeck v. Hess ( 1988 )

— Yesawich, Jr., J.

Tonia L. Dillenbeck was killed and her son, plaintiff Michael C. Dillenbeck, was seriously injured when their vehicle collided with one driven by defendant Sherry L. Hess. In their complaint, plaintiffs allege that Hess’ intoxication, said to have been negligently and illegally facilitated by the other defendants, who are owners and operators of taverns where Hess had been drinking alcoholic beverages prior to the accident, was a proximate cause of the accident. Hess, who was hospitalized immediately following the occurrence, claims to have no memory of the incident. In her answer she denied the material allegations of the complaint and affirmatively asserted the defenses of comparative negligence and failure to wear available seat belts.

Plaintiffs moved, pursuant to CPLR 3121, for an order compelling Hess to furnish a written authorization, enabling them to obtain and make copies of her medical records, including the results of any blood alcohol test administered upon her arrival at the hospital. Hess objected and successfully cross-moved for an order of protection based upon the physician-patient privilege (see, CPLR 4504). Plaintiffs appeal; we affirm.

It is plaintiffs’ contention that Hess, who was convicted of criminally negligent homicide following the incident, waived or forfeited her physician-patient privilege by affirmatively putting her physical condition in issue in that she elected to drive after being "shut off” by the bartender, although having voluntarily brought about her own debility by consuming 13 shots of alcohol, and by reason of the fact that she was denied no-fault insurance benefits. While Hess’ physical condition, in particular her blood alcohol content at the time of the accident, is undeniably in issue, it is settled, we think, that where, as here, the defendant simply denies being intoxicated, the physician-patient privilege must be recognized (see, Koump v Smith, 25 NY2d 287, 294). Plaintiffs also argue that Hess’ assertion that she suffers from retrograde amnesia regarding the events surrounding the accident effects a waiver of the privilege. However, Hess does not claim that amnesia excuses her conduct nor is she seeking to recover damages for that condition; accordingly, facts constituting a waiver by Hess have not been shown (see, La Fave v McDonald, 112 AD2d 669; see also, Iseman v Delmar Medical-Dental Bldg., 113 AD2d 276, 279).

Order affirmed, without costs. Yesawich, Jr., Levine and Harvey, JJ., concur.