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Mosel v. Brookhaven Memorial Hospital

Supreme Court of New York, Special Term, Suffolk County

December 12, 1986

No Number in Original



 [**755]  The attorney for the plaintiffs has requested that this court permit the videotaping of a physical examination of the incompetent plaintiff by the defendant scheduled to take place at Brookhaven Memorial Hospital. The defendants object to the videotaping of this physical examination by a representative of the plaintiffs.

The plaintiffs' claim of medical malpractice involves the alleged negligence of the defendant physicians in their care and treatment of the incompetent plaintiff and the alleged negligence of the defendant hospital in allowing the incompetent plaintiff, Joseph Mosel, to fall out of bed several times while hospitalized at Brookhaven Memorial Hospital. The incompetent plaintiff has been in a semicomatose state since 1981,  [***3]  which is the injury plaintiffs claim proximately resulted from defendants' negligence.

The defendant, Brookhaven Memorial Hospital, has requested that it be permitted to conduct a physical examination of the incompetent plaintiff at this time. ] Normally, the right of the defendant to conduct a physical examination of a plaintiff in a medical malpractice action would be unquestioned since CPLR 3121 provides that: "[after] commencement of an action in which the mental or physical condition * * * of a party * * * is in controversy, any party may serve notice on another party to submit to a physical, mental or blood examination by a designated physician".

However, here, a statement of readiness was filed before defendant requested this physical examination. ] The failure to move to strike the statement of readiness within the statutorily prescribed time period of 20 days could be considered a waiver of the right of defendant to conduct a physical examination of the incompetent plaintiff ( Sloan v Briggs Leasing Corp., 97 AD2d 818).

The plaintiffs' attorney has agreed to consent to the physical examination if they are permitted to videotape it. The defendants have opposed the videotaping [***4]  of the examination  [*75]  because they assert that (1) if the videotape is shown to the jury, it would, most likely, prejudice the defendants, and (2) a videotape is unnecessary because other evidence can be submitted by the plaintiffs to show the manner in which the physical examination was conducted by defendants' doctor.

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134 Misc. 2d 73 *; 509 N.Y.S.2d 754 **; 1986 N.Y. Misc. LEXIS 3060 ***

Joseph Mosel, an Incompetent, by His Guardian ad Litem, Peter Mosel, et al., Plaintiffs, v. Brookhaven Memorial Hospital et al., Defendants


videotape, physical examination, recording, incompetent, tape, deposition, parties

Civil Procedure, Discovery, Methods of Discovery, Mental & Physical Examinations, Criminal Law & Procedure, Blood Alcohol & Field Sobriety Testing, Implied Consent, Warning Requirements, Torts, Malpractice & Professional Liability, Healthcare Providers, Defenses, Demurrers & Objections, Motions to Strike, General Overview, Counsel, Right to Counsel, Attorneys, Legal Ethics, Client Relations, Conflicts of Interest, Trials, Examination of Witnesses, Child Witnesses, Governments, Courts, Rule Application & Interpretation, Transmitted & Videotaped Testimony, Depositions, Oral Depositions