In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, according to the Pattern Jury Instructions (PJI) 2:280, is “pain and suffering of which there was some level of awareness by the plaintiff”. Loss of enjoyment of life, according to the PJI, includes the “loss of the ability to perform daily tasks, to participate in the activities which were a part of the person’s life before the injury, and to experience the pleasures of life”. The threshold of “some level of awareness” in order to recover under the law had to be set by the Court of Appeals for purposes of simplicity.
When a person brings a personal injury case, he or she waives the physician-patient privilege as to mental or physical injuries or conditions, but only as to those that are affirmatively put in issue by him or her in the lawsuit. The party seeking the disclosure of mental or physical health information (defense counsel) bears the burden of making an evidentiary showing that the condition is in controversy and discovery may proceed under the statute. Defense counsel will ordinarily not be able to show entitlement to discovery of a medical file pertaining to treatment for an injury to the cervical spine in 2008 when the plaintiff is making a claim for a 2011 foot fracture.
What if a plaintiff claims that she suffers from anxiety as a result of a fractured foot that occurred in a 2011 accident? Does it render her complete file of psychiatric records discoverable? Or what if she claims that she lost the enjoyment of her life as a result of the fractured foot she sustained in the 2011 accident? Does this claim render her entire physical and mental medical file discoverable?