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Osterman v. Ehrenworth

Decided: July 15, 1969.

ANNIE OSTERMAN AND PETER OSTERMAN, PLAINTIFFS,
v.
LIONEL EHRENWORTH, DEFENDANT



Weidenburner, J.s.c.

Weidenburner

This is a medical malpractice action in which the defendant-physician objects to answering certain interrogatories on the ground that the answers sought would be in violation of the patient-physician privilege recently created by L. 1968, c. 185 (N.J.S. 2 A:84 A -22.1 et seq.).

The complaint alleges that the defendant negligently prescribed the drug prednisone for the treatment of an arthritic condition in plaintiff's legs. Plaintiff served the defendant with interrogatories. When defendant did not respond to the interrogatories now in question, plaintiff moved to strike defendant's answer and direct a trial as to damages only. The interrogatories under attack are the following:

"14. Has defendant ever previously utilized prednisone in the treatment of arthritis or any other illness, disease or symptom? If yes, state (a) the names and addresses of all those so treated, (b) the illness, symptom or disease for which they were treated, (c) defendant's reasons for utilizing prednisone in such treatment, (d) the length of time for which prednisone was prescribed, (e) whether such persons are still under defendant's care.

15. If the answer to question 14(e) is no with regard to any person, state the name and address of each such person or persons, together with the date and reason that treatment was discontinued.

16. If the answer to question 14(e) is yes with regard to any person but prednisone is no longer used in the treatment of such person or persons, state the name and address of each of such patients, together with the date and reasons that the use of prednisone was discontinued.

19. If question 17 (inquiring as to whether it was defendant's practice to treat all patients exhibiting the same symptoms as the plaintiff with prednisone) is answered in the negative, state the names and addresses of at least three patients exhibiting symptoms similar to plaintiff Annie Osterman's, for whom defendant did not prescribe prednisone, and state why said drug was not used. (Parentheses supplied).

20. Has defendant ever prescribed prednisone for any person other than plaintiff Annie Osterman, where such prescriptions were renewed continuously for three years or longer?

21. If question 20 is answered in the affirmative, state (a) the names and addresses of all those so treated, and (b) the length of such treatment.

22. If the answer to question 20 is no, state (a) the longest length of time for which defendant continuously prescribed prednisone, (b) the name and address of each such patient or patients, and (c) the length of such treatment.

50. Has defendant ever prescribed prednisone for any patient other than plaintiff Annie Osterman, to be taken more than 7 tablets per day? If so, state the names and addresses of each such patient and length of time such treatment was continued.

51. Had defendant knowledge, during the course of his treatment or thereafter, of any other physician who has prescribed prednisone in dosages exceeding 7 tablets per day? If so, state the names and addresses of each such physician, the dosage defendant understood them to prescribe, and the length of time such treatment was continued."

At common law and prior to 1968 New Jersey did not formally recognize a patient-physician privilege. Hague v. Williams , 37 N.J. 328, 334-335 (1962) and cases and authorities there cited.

Prior to the legislative recognition of the patient-physician privilege in this State (N.J.S. 2 A:84 A -22.1 et seq., supra), however, our highest courts compelled disclosure of information relating to a patient's health, which was received or obtained in the course of the patient-physician relationship, without the patient's consent, only where the public interest Williams, supra, p. 336; Myers v. St. Francis Hospital , 91 or the patient's private interest required it. Hague v. N.J. Super. 377, 386-387 (App. Div. 1966).

In Hague the plaintiffs sued the defendant-physician for medical malpractice. Defendant prevailed in the trial court and on appeal the question was stated to be:

"* * * whether there exists a duty which defendant allegedly breached, i.e. , whether the knowledge of the child-patient's pathological condition obtained by defendant physician in the course of consultation or treatment is of such a confidential nature that the physician is barred from an extra-judicial ...


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