This is a medical malpractice action commenced in April, 2006, in which it is alleged that, during the year 2003, the defendants negligently diagnosed and treated the infant plaintiff, [*2]which resulted the infant plaintiff sustaining brain injuries and other damages ^[FN1]. Plaintiffs move pursuant to CPLR §3126 seeking an order compelling the defendant Suhasini Pinapati, M.D. (Pinapati) to answer a certain question posed at her deposition, inter alia, an order to striking defendant Pinapati's answer. The defendant Pinapati opposes the plaintiffs' motion.

The relevant facts are as follows: On December 21, 2007, the deposition of the defendant Pinapati, who was the infant plaintiff's pediatrician, was conducted. At her deposition, plaintiffs asked the following question:

Q:Do you have any criticism of the care Max received from any health care professionals?

The defendant Pinapati's counsel objected, and after a discussion on the record, counsel directed the defendant Pinapati not to answer the question.

In support of their motion, plaintiffs claim that, pursuant to 22 NYCRR §221.1 ^[FN2], the defendant Pinapati must answer the question. Plaintiffs claim that the defendant Pinapati has not established a claim of privilege or confidentiality so as to justify not answering the question. Plaintiffs further claim that the question was not improper, nor would it cause significant prejudice if answered.

In opposition to the motion, the defendant Pinapati maintains that the objection was proper. Defendant cites to Carvalho v. New Rochelle Hospital 53 AD2d 635, 635 (2nd Dept. 1976) for the proposition that, in an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the professional quality of the services rendered by a co-defendant physician if the questions bear solely on the alleged negligence of the co-defendant and not on the practice of the witness. The defendant Pinapati argues that the uniform rules concerning the conduct of depositions does not alter the holding in Carvalho v. New Rochelle Hospital since the question, itself, was not proper. The defendant Pinapati asserts that the objection was made in good faith since plaintiffs failed to establish that she had reviewed in any detail, the infant plaintiff's lengthy medical records. Finally, the defendant submits the affidavit of Suhasini Pinapati, who now provides the following written response to the plaintiffs' question posed at the deposition that is at issue:

A:No, not at this time since I have not reviewed the medical records of other health [*3]care providers for Max Devine.

Based on this answer, the defendant Pinapati argues that the plaintiffs' motion is rendered moot.

In reply, plaintiffs argue that, if the defendant Pinapati felt it appropriate to apply for an order limiting the scope of deposition, she was entitled to apply for the same under 22 NYCRR §221.2. Plaintiffs argue that, unlike the case in Carvalho v. New Rochelle Hospital, the defendant Pinapati has placed the conduct of other medical providers at issue, as evidenced by the affirmative defense that her percentage of liability should be limited by the provisions of CPLR Article 16 and the cross-claims asserted against co-defendants. Lastly, plaintiffs claim that the issue is not moot simply because the defendant answered the question posed, since her response would have led to a line of questioning regarding her answer.

It is well settled that the trial court "has broad discretion in determining the nature and degree of the penalty to be imposed where a party has refused to comply with discovery demands". Ashline v. Kestner Engrs., 219 AD2d 788, 790 (3rd Dept. 1995). The choice of remedy imposed by a court will not be disturbed on appeal unless there is a clear abuse of discretion. Cavanaugh v. Russell Sage Coll., 4 AD3d 660 (3rd Dept. 2004).

In McDermott v. Manhattan Eye, Ear and Throat Hospital, 15 NY2d 20 (1964), the Court of Appeals held that "a party in a civil suit may be called as a witness by his adversary and, as a general proposition, questioned as to matters relevant to the issues in dispute". Id at 26. The Court in McDermott held that a plaintiff in a malpractice action is entitled to call the defendant doctor to the stand at trial and question him as an expert for the purpose of establishing the generally accepted medical practice in the community . Yet, in a medical malpractice action, a co-defendant physician may not be deposed about the actions of another co-defendant physician if the questions posed relate solely to the alleged negligence of the co-defendant and not to the actions of the witness. Carvalho v. New Rochelle Hospital, 53 AD2d 635 (2nd Dept.1976)^[FN3]; Harley v. Catholic Medical

Center of Brooklyn, 57 AD2d 827 (2nd Dept.1977)^[FN4].

The motion will be denied. The law is clear that, in an action of this type, a physician may not, before trial, be asked to render an opinion of the quality of medial services rendered by other physician defendants. The reason for this rule is obvious: To prevent the incongruous result of a plaintiff eliciting expert opinion of the quality of one defendant physician from another defendant physician, and, depending on the response, adopting as one's own expert, the very physician [*4]whom the plaintiff has already sued for malpractice. Whether plaintiffs' counsel could have posed a more narrowly focused question to this defendant is not before the Court; the actual question presented is so broadly based ("any health care professionals") that it could elicit a response from the defendant Pinapati concerning the other defendant physicians. The defendant Pinapati cannot therefore be compelled to answer the question as to whether she has any criticism of the care the infant plaintiff received from any health care professionals. Because plaintiffs' question is improper pursuant to 22 NYCRR §221.2[c], defense counsel's objection to and direction to not answer the question was proper.

Accordingly, it is here by

ORDERED that plaintiffs' motion is seeking an order compelling the defendant Suhasini Pinapati, M.D. to answer a certain question posed at her deposition, inter alia, an order to striking the answer of the defendant Pinapati, is denied. The Discovery Order dated March 3, 2008 remains in effect.

This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to the attorneys for defendant Suhasini Pinapati, M.D. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED.

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Dated: May 21, 2008John C. Egan, Jr., J.S.C.

Albany, New York