The decision in Heines v. Minkowitz (Supreme Court, Richmond County) addresses an extremely interesting question: Can a defendant seek discovery as to the psychiatric records of a plaintiff who is merely suing derivatively.  In Heines, the infant plaintiff commenced a malpractice action against one of his doctors concerning a surgery to the infant’s leg.  The infant’s mother is suing derivatively for loss of services.

The defendant sought authorization and disclosure of the medical records of the infant’s mother, arguing that the mother was suffering from Munchausen Syndrome By Proxy (MSBP).  Because the infant’s mother had waived her privilege to preclude discovery of this information (one during her testimony at a deposition), Supreme Court Justice Maltese ordered the infant’s mother to submit her psychiatric records to the Court to be examined in camera to
ascertain whether she is suffering from Munchausen Syndrome By Proxy
(MSBP), or such other factitious disorder or condition that has
contributed to the medical treatment history of her son in this medical malpractice action.

Given that there is a fine line for the discovery of such privileged information (see prior post), this case makes for an extremely interesting read.