Court Orders Medical Discovery in Employment Discrimination/Retaliation Case

While relatively short, the First Department’s recent decision in Donovan v. NYC Housing Authority, 2019 N.Y. Slip Op. 09394, 2019 WL 7173616 (N.Y.A.D. 1 Dept., Dec. 26, 2019), is instructive on the scope of medical discovery that courts will allow/disallow in an employment discrimination case.

The court below had issued an Order denying defendant’s motion, pursuant to CPLR 3124, to compel disclosure of plaintiff’s medical records from March 2015 to the present. The appellate court unanimously modified that Order, to grant the motion to the extent of requiring plaintiff to provide an authorization for disclosure of medical records from September 2015 onward (and otherwise affirmed it).

In requiring certain medical disclosure from the plaintiff, the court explained (internal citations omitted0:

Plaintiff provided NYCHA with an authorization for medical records from her primary care provider from June 2016 to the present. Although plaintiff only seeks damages for emotional distress, she affirmatively put her physical condition at issue by alleging that, starting with an incident in September 2015 in which her supervisor allegedly groped her, NYCHA created a hostile work environment that caused her physical distress, and ultimately resulted in a miscarriage. As such, plaintiff’s medical records for that period forward are material and necessary to NYCHA’s defense.

It held, however, that the defendant was not entitled “to wholesale disclosure of all of plaintiff’s hospital and physician records starting six months before the conduct complained of commenced”, noting that it “failed to establish that these records would be pertinent.”

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