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Unick v. Kessler Memorial Hospital

Decided: September 29, 1969.

CATHERINE UNICK, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOAN D. UNICK AND CATHERINE UNICK, GENERAL ADMINISTRATRIX OF THE ESTATE OF JOAN D. UNICK, PLAINTIFF,
v.
KESSLER MEMORIAL HOSPITAL, SALVATORE A. PENNISI, M.D. AND HOWARD L. KENT, M.D., DEFENDANTS



Rimm, J.c.c. (temporarily assigned).

Rimm

This is (1) a motion by plaintiff to compel defendant Dr. Howard L. Kent, (Kent) to answer two of plaintiff's interrogatories, and (2) an application to compel defendant Kessler Memorial Hospital (Kessler) to produce its operating room schedule and record book for September 14, 1966.

The interrogatories propounded by plaintiffs addressed to Kent, and here in issue, are as follows:

74. Have you ever been a party to any lawsuit other than the present one?

ANSWER: Refused to answer without order of court.

75. If the answer to the preceding Interrogatory is in the affirmative, state: (a) the name of the parties to such suit, (b) your status therein, (c) the court in which it was filed.

ANSWER: [left blank]

If Kent is ordered to answer No. 74, then it follows that No. 75 must also be answered.

Plaintiffs contend that decedent came under the care of Kent and Dr. Salvatore A. Pennisi (Pennisi) at Kessler on September 12, 1966. Two days later the infant female decedent was administered anesthesia by Kent in connection with a cystoscopy and catheterization were being performed by Pennisi at Kessler. When the procedure was completed decedent became cyanotic and her vital signs diminished. Resuscitation was undertaken with success, but decedent died on September 19, 1966 as a result of cardiac arrest under anesthesia for retrograde pyelography. Kent is charged generally with negligence and malpractice in that he failed to exercise care in the choice of an anesthetic agent and care in the administration of the anesthesia which proximately caused the death; and negligence for failure to exercise proper care. Pennisi performed the procedures in the operating room of Kessler, and allegations relating to Pennisi's negligence are not pertinent to this issue.

The question to be resolved is whether the information sought by plaintiffs may be withheld by Kent by virtue of it being a confidential communication because of the patient-physician privilege under to N.J.S.A. 2A:84A-22.1 and 22.2.

In the absence of the benefit of the statutory privilege there would be no basis for withholding the requested information at the discovery stage of the proceedings. Myers v. St. Francis Hospital , 91 N.J. Super 377 (App. Div. 1966). Hague v. Williams , 37 N.J. 328, 334-335 (1962). The answer to interrogatory No. 75 would necessarily disclose to plaintiffs the names and addresses of patients of Kent who are not parties to this action and have no interest in this litigation.

In Osterman v. Ehrenworth , 106 N.J. Super. 515, 521 (Law Div. 1969), the court held that the "statute [physician-patient privilege] reflects a legislative determination that the policy behind the patient-physician privilege is of greater ...


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