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Physician-Patient Privilege

February 13, 2008

Fundamental to the concept of DWI accidents is the physician-patient privilege. Indispensable in any discussion of conversations, observations and communications which transpire between a physician and his or her patient is the recognition of the privileged nature of those communications. In New York an individual's constitutional right to privacy encompasses only "the broad, general right to make decisions concerning oneself and to conduct oneself in accordance with those decisions free of governmental restraint or interference."[i] This "right to be let alone,"[ii] has never been drawn so tight so as to be read to create a right of privacy concerning conversations had between a physician and his or her patient, even when such conversations are related to the patient's treatment and care.

It is, nonetheless, important. Frequently, the most serious alcohol related operating offenses will concern declarations or diagnostic tests which occur when the defendant is treated for injuries received in an automobile accident. Over one hundred years ago, the Court of Appeals wrote "[t]he disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity, naturally shocks our sense of decency and propriety, and this is one reason why the law forbids it."[iii] More recently it observed that "'the value placed on privacy, manifested both by general concerns for privacy and by the specific concerns for an individual's bodily integrity found in constitutional, statutory, and common law doctrines, suggests a strong policy basis' for the privilege."[iv]


The privilege is not, however, without its critics. As noted by the Court of Appeals in Williams v Roosevelt Hospital, "[t]he privilege has been severely criticized because of serious doubts that its truth‑inhibiting effect can be justified by any real promotion of the public health."[v] Likewise, it has been criticized as "antiquated and no longer regularly observed by physicians[vi] and "that protection of patients' privacy is not a sufficiently important interest to justify nondisclosure of legally pertinent medical information."[vii] Recognizing the complex yet paramount nature of the privilege, we devote this issue to the various state and federal issues which naturally arise.

CPLR ' 4504

Unprotected at common-law,[viii] the source of the modern privilege is CPLR '4504, which provides:

4504. Physician, dentist, podiatrist, chiropractor and nurse.

(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation, as defined in article forty‑four of the public health law, a professional service corporation organized under article fifteen of the business corporation law to practice medicine, and the patients to whom they respectively render professional medical services. A patient who, for the purpose of obtaining insurance benefits, authorizes the disclosure of any such privileged communication to any person shall not be deemed to have waived the privilege created by this subdivision.

 


This statute and its predecessor[ix] created the privilege to the extent that it is known in New York, the first state to honor the prohibition.[x] "The privilege applies not only to information communicated orally by the patient, but also to 'information obtained from observation of the patient's appearance and symptoms, unless the facts observed would be obvious to laymen.'"[xi] "Its purpose is to protect those who are required to consult physicians from the disclosure of secrets imparted to them; to protect the relationship of the patient and physician and to prevent physicians from disclosing information which might result in humiliation, embarrassment or disgrace to patients."[xii] Its purpose is also to enable the patient to make full disclosure to the physician so as to obtain the full benefit of his or her medical skill[,][xiii] upon "the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment."[xiv] The statute prevents disclosure by the physician and likewise bars the patient from being compelled to testify as to what he or she told the physician in confidence.[xv] The privilege belongs to, is personal with, and generally is asserted by the patient. In the absence of a waiver, however, it may be asserted by the patient's physician.[xvi] The prohibition against the testimony of physicians is not limited to testimony concerning parties to an action, but applies to any patient, whether a party or not,[xvii] but any party to the action may object to the admission of such evidence.[xviii]

The privilege applies in criminal cases by virtue of CPL '60.10.[xix] Despite some authority to the contrary,[xx] the Court of Appeals seemingly endorses a liberal interpretation of the statute and the aims it seeks to enforce.[xxi]

Communications Within Privilege.

In order to bring the statutory physician-patient prohibition into existence, three requirements must be met: (1) that a relationship between physician and patient existed; (2) that the information was acquired while the physician was attending the patient in a professional capacity; and (3) that the information was necessary to enable the physician to act in that capacity. "[T]he privilege extends to that which falls within the ambit of information relating to the nature of the treatment rendered and the diagnosis made."[xxii]

Although the statute provides for non-disclosure of information "acquired in attending a patient in a professional capacity,"[xxiii] it has been made clear that it applies to those instances in which the individual seeking to assert the privilege was attempting to obtain medical treatment.[xxiv]


Essential to the privilege is the requirement that the physician obtain information in his or her professional capacity to enable the rendering of treatment. "That which the privilege seeks to protect . . . are confidential communications, not the mere facts and incidents of a person's medical history."[xxv] The names and addresses of patients are therefore not privileged inasmuch as "[a] physician is free to testify as to the fact that he has treated a patient and the occasions of his treatment."[xxvi] Similarly, the bar will not extend to prohibit testimony that an individual "is the patient of the doctor; that he attended him as a patient . . . how many times he attended him, whether daily or hourly," and "that [the patient] was sick."[xxvii]


Likewise key is the requirement that the information was "necessary to enable him to act in that capacity," although the distinction is not always easy to draw. When a physician, for example, is called in to determine whether or not the patient is suicidal, statements to the effect that certain wounds were self-inflicted would be privileged,[xxviii] whereas for the mere purpose of suturing the same they may not. Often overlooked is that to be privileged, the information need not come from the patient. Information encompassed by the privilege is "not only communications received from the lips of the patient, but such knowledge as may be acquired from the patient himself, from the statement of others who may surround him at the time, or from observation of his appearance and symptoms."[xxix] However, "facts which are 'plain to the observation of anyone without expert or professional knowledge' are not within the privilege."[xxx] In People v Hedges,[xxxi] the Fourth Department observed that "facts which are 'plain to the observation of anyone without expert or professional knowledge' fall within an exception which has been carved from the general rule."[xxxii] Thus, photographs[xxxiii] or the names and addresses of patients may be disclosed without violating the terms of the statute.[xxxiv] A blood test administered to an intoxicated motorist for diagnostic purposes is privileged and, absent a waiver, may not be used at a criminal trial founded upon an alcohol influenced operating offense.[xxxv]

Gratuitous comments, those not necessary or incident to rendering of medical treatment or advice, are not "information * * * acquired in attending a patient * * * necessary to enable him to act in that capacity" and therefore are not privileged.[xxxvi] In People v Bowen,[xxxvii] proof at trial included various statements made by the defendant at a hospital emergency room that his blood alcohol content was "way up there", that he had consumed six beers, and that he was "polluted". Finding these statements to be spontaneous and not germane for treatment, the Fourth Department held that the defendant failed to establish that his statements were confidential and protected by the physician-patient privilege.

Of importance is that the information be conveyed in such a fashion so as to indicate that the patient considered the matter privileged and intended to keep it so.[xxxviii] In People v Christopher,[xxxix] the defendant, at the time he made a statement to a nurse which he later claimed to be privileged, indicated a desire to notify law enforcement officials. Finding that the defendant never intended the privilege to apply, the Fourth Department found the privilege never attached.

Of similar import, the failure to object at a hearing or trial will result in a waiver,[xl] and a violation of the privilege cannot be raised for the first time on appeal.[xli]

Affirmative Assertion of a Condition


Clearly the statute permits a party to obtain disclosure of the mental and physical condition of the opposing party when that party has placed his or her condition at issue, such as by commencing an action for personal injuries.[xlii] Less clear is the situation where a party has placed the condition of the opposing party at issue. In Koump v Smith,[xliii] the plaintiff alleged that the defendant was intoxicated at the time their vehicles collided. Thereafter, she sought disclosure of the defendant's hospital record to substantiate this claim. In holding that disclosure could not be compelled, the Court of Appeals adopted a rule whereby such disclosure will be had only when the opposing party has placed his or her physical condition at issue such as through a defense, counterclaim, deposition testimony or by undergoing "a prior physical examination[xliv] which substantiated or gave credence to the allegations of the plaintiff's complaint."[xlv] In attempting to obtain such disclosure, the procedure to be employed is for the party seeking the information to serve a demand under CPLR '3121, whereupon a party seeking to avoid discovery must move for a protective order pursuant to CPLR '3122. Upon the hearing of the motion, the burden will be upon the party seeking the information to show "that the party's mental or physical condition is in controversy," by means of sworn evidentiary allegations.[xlvi]

For sometime there remained some question over the requirement that the otherwise privileged party place his or her physical or mental condition "in controversy." While it was clear that such required more than a mere denial, the degree to which it need be placed "in controversy" and indeed the effect of meeting this introductory threshold remained in doubt.[xlvii]

In Dillenbeck v Hess,[xlviii] plaintiff's intestate was killed by a motorist believed to be intoxicated at the time of a collision. Thereafter, the administrator sought production of the defendant's hospital records to further this claim. While the majority eschewed the suggestion that Dillenbeck was anything other than a restatement of the principles set forth in Koump, a close reading belies the fact that CPLR '4504 now requires a two-step analysis.


Initially, waiver of that claimed to be privileged necessitates that the party seeking disclosure, demonstrate that the condition has been affirmatively placed "in controversy." In Dillenbeck, the Court found this standard to have been met by, inter alia, defendant's conviction for criminally negligent homicide. Thereafter, and after meeting this threshold requirement imposed by CPLR '3121, the Court found that disclosure of that which was otherwise protected by CPLR '4504, would nevertheless be barred unless and until a waiver could be found on the part of the party resisting discovery. Here the Dillenbeck plaintiff failed:

Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct. Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition.[xlix]

 

Intentional or not, Dillenbeck has placed a heightened burden upon parties seeking disclosure of an opponent's medical condition irrespective of the degree to which it is "in controversy." As pointed out by the dissent, a fair reading of Koump seemed to aid the truth finding process. Since the party pursuing discovery nonetheless had to make an evidentiary showing that the condition was truly "in controversy," the chance that the privilege would be frivolously nullified was slight indeed. By using CPLR '3121 as a mere threshold requirement, in addition to waiver, the Court has placed the evidentiary reigns firmly within the grasp of the party seeking to impose the bar, irrespective of the degree to which such person's medical condition has been placed at issue.

Of some concern is whether or not a non-party custodian may successfully oppose disclosure. In Cynthia B. v New Rochelle Hospital Medical Center, et al.,[l] a non-party hospital opposed discovery upon the grounds that irreparable harm would occur if the records were disclosed. In affirming an Appellate Division order permitting disclosure, the Court noted that the right to such disclosure was not absolute:


If the records are found generally to be material under CPLR 3101 and the patient is found to have waived the privilege of confidentiality, either expressly by authorizing the record's release or implicitly by placing his or her mental condition in issue, a strong presumption is created in favor of granting the motion to compel disclosure. This presumption may be rebutted, however, by a custodian hospital or physician in a request for a protective order limiting discovery upon a showing of exceptional circumstances. Such circumstances may be deemed present when the custodian establishes that nondisclosure, in whole or in part, is reasonably necessary to prevent imminent and serious physical or psychological damage to the patient. Failure to rebut the presumption requires the court to order disclosure of the entire record to all parties.[li]

Diagnostic Tests in DWI Accidents

Frequently, results will be offered from a bloodtest that occurred not as a consequence of law enforcement activities, but from a test that was taken for diagnostic purposes. In the usual situation, the results of such a test, absent a waiver of the physician-patient privilege, will be inadmissible.

Statutorily created, CPLR ' 4504, in relevant part, provides:

Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.

In People v Petro,[1] the defendant was indicted and charged with two counts each of Vehicular Manslaughter and Driving While Intoxicated, and one count of Criminally Negligent Homicide and Failure to Keep Right. There were no witnesses to the accident and the State's case, by and large, turned upon a "serumosmology blood test" which was performed for diagnostic purposes and denoted an incredible .51 percent. At the trial court level, the defendant moved to suppress the results of the test. Finding the physician‑patient privilege created in CPLR ' 4504 to bar admission, the court suppressed and dismissed all counts of the indictment except the failure to keep right.


Upon the People's appeal, the Third Department noted, in a brief memorandum, that the privilege ran equally to criminal and civil cases and affirmed:

The physician‑patient privilege (CPLR 4504), which is applicable in criminal proceedings (CPL 60.10), may be asserted by a patient even though that patient is suspected of or charged with a crime (Re Grand Jury Investigation (1983) 59 NY2d 130). Here, it is clear that the blood test was performed in the course of attending defendant in a professional capacity (see, supra, p. 134). Because there is no evidence that defendant at any time waived the privilege and since there is no specific statutory exception covering this case (see, supra, pp 135‑136), we must agree with County Court that the physician‑patient privilege mandates that the test results be suppressed and, accordingly, that five counts of the indictment be dismissed.[2]

Mere observations, however, may fall outside the ambit of the privilege in the event that they are of a kind that could be made by any individual similarly situated. In People v Hedges,[3] the Fourth Department observed that "facts which are "plain to the observation of anyone without expert or professional knowledge" fall within an exception which has been carved from the general rule."[4]

 

Emergency Medical Technicians (EMT)


Of interest is whether or not the above referenced privilege will bar admission of testimony of an emergency medical technician (EMT). In a case of first impression, the Monroe County Court in People v Ackerson.[5] held it did not.

In Ackerson, the defendant sought to preclude testimony from an emergency medical technician that arrived at the scene of a personal injury accident in which the defendant was involved. In holding the privilege did not apply, County Court noted that, as a privilege that did not exist at common law, the privilege must be strictly construed. Observing that notwithstanding the variety of statutory privileges that exist, "the legislature has not created any explicit evidentiary privilege between an emergency medical technician and the person to whom he or she is rendering aid." The Ackerson court found lack of such an explicit privilege was a strong indication that none was to be implied.

Despite some earlier indications that the physician-patient privilege is to be liberally construed,[6] the Ackerson court felt that the substantial difference between the treatment afforded by a physician and the stabilization offered by the EMT afforded a basis in logic for such an outcome.

A contrary conclusion was reached in People v Hanf.[lii] In Hanf, the People sought to offer as evidence at trial apparent admissions against penal interest. These admissions were allegedly made by the defendant to an emergency medical technician who treated his wife at the scene of the homicide. In finding that an emergency medical technician fell within the grasp of the privilege, the Court examined the function of the technician when he or she seeks to render care:


The emergency medical technician was licensed by New York State and acted pursuant to a protocol designed and adopted by physicians to whom the emergency medical technician reported. The emergency medical technician also had radio contact with a physician at Strong Memorial Hospital. * * * Thus, the analysis of whether this particular communication is deemed to be within the scope of the physician-patient privilege is dependent upon whether:

 

1. an emergency technician is "a person authorized to practice medicine;"

 

2. whether the communication received from the defendant was a protected communication in that it was obtained in the course of treatment and was necessary for treatment of the patient;

 

3. whether the communication was on behalf of the patient and derived from confidential communications with the patient.

 

Accordingly, the Court (P. Marks, J.) found:

 

It is clear on the facts of this case that the emergency medical technician falls within the scope of the meaning of "a person authorized to practice medicine" (CPLR 4504[a]). Proof offered at the hearing clearly established that the emergency medical technician who responded to the scene, acted as an agent of the doctor.

 

 

 

Waiver of the Privilege in DWI Cases

In People v Osburn,[7] the trial court found a waiver in the defendant's cross‑examination of certain medical witnesses about her physical condition which was conducted in an effort to show that her submission to a chemical test had been involuntary.

In drawing a crucial distinction between one who affirmatively raises the condition and one who interposes it as a defense, the Fourth Department remarked:


The court erred, however, in concluding that defendant waived the physician‑patient privilege by cross‑examining certain witnesses about her physical condition and in admitting the hospital's diagnostic test. "[A] party does not waive the privilege whenever forced to defend an action in which his or her mental or physical condition is in controversy" (Dillenbeck v Hess (1989) 73 NY2d 278, 539 NYS2d 707, 536 NE2d 1126). The cross‑examination regarding defendant's condition at the hospital was undertaken to show that her consent to the blood test taken at the request of the police was involuntary, and not to excuse her conduct or to show that her appearance was the result of her injuries instead of intoxication.[8]

In People v Kral,[9] the defendant was indicted and charged with two counts of Vehicular Manslaughter in the second degree,[10] two counts of Criminally Negligent Homicide[11] and two counts of Driving While Intoxicated.[12] On appeal, he contended, inter alia, that the People violated his statutory physician‑patient privilege by subpoenaing[13] his hospital records. Indeed, the record was clear that the People had subpoenaed the records. They quite candidly sought such records to determine the defendant's serum osmolarity which the People intended to use in conjunction with reverse extrapolation in an effort to determine his blood alcohol content at the time of the accident. At trial, when it became apparent that the expert intended to use the defendant's otherwise privileged record, the defense objected, and the People were precluded from offering the testimony.


As part of his case, however, the defendant testified on his own behalf concerning his consumption of food and alcohol prior to the accident. Foundational in character, he thereafter called as a witness, a pharmacologist, who testified as to the absorption rate of alcohol and opined that at the time the accident occurred, it was likely that none of the alcohol which the defendant had consumed an hour earlier had entered his bloodstream.


The difficulty created by this strategy should be obvious. In People v Petro,[14] the court specifically noted there was no evidence that the privilege had been waived. In Kral, this was no longer true. Although the physician‑patient privilege is personal to the patient and, in the absence of a waiver, it may be asserted by the physician.[15] Kral, by affirmatively putting the alcoholic content of his blood in issue, unwittingly brought about a waiver of the statutory protection. Recall that in Koump v Smith,[16] the Court of Appeals, recognizing that a waiver on the part of a litigant will be had only when the opposing party has placed his or her physical condition at issue, eschewed disclosure of the defendant's hospital report even though the gravamen of the complaint was that the defendant was intoxicated at the time of the collision. In Dillenbeck v Hess,[17] "at issue" was held to require some affirmative action, such as a counterclaim on the part of the party resisting disclosure, and the Fourth Department has refused to find a waiver by a decedent's representative who asserted a cross‑claim for apportionment of damages.[18] Certainly an indictment, no more than a complaint, cannot affirmatively place a defendant's physical condition in controversy. However, when the defendant seeks to forge a sword from this historical shield, as did Kral, a waiver will rightfully be found. So clear was the resolution on this point that the defendant conceded a waiver at the argument of his appeal.

People v Gonzalez, details similar potential for accidental waiver of the privilege. Gonzalez concerned criminal charges filed after the deaths of five people in an automobile accident. In Gonzalez a diagnostic test conducted within 15 minutes of the defendant's arrival at a hospital showed a blood alcohol content of .10%, whereas a court ordered chemical test conducted about two hours later, after defendant had been arrested for Driving While Intoxicated, revealed a blood alcohol content of .07%. At trial, defense counsel attempted to show through cross-examination that the appearance of defendant was the result of his injuries instead of intoxication. Distinguishing these facts from People v Osburn, the Fourth Department determined that this course of cross-examination resulted in a waiver of the privilege by placing his medical condition in issue.

Federal Law

Frequently unrecognized in alcohol related operating accidents is the effect of 42 U.S.C. '290dd-2. This section, in relevant part, provides:

42 U.S.C. '290dd-2 - Confidentiality of Records

(a) Requirement. Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e), be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b).

 

* * *

(c) Use of records in criminal proceedings. Except as authorized by a court order granted under subsection (b)(2)(C), no record referred to in subsection (a) may be used to initiate or substantiate any criminal charges against a patient or to conduct any investigation of a patient.

 


(d) The prohibitions of this section continue to apply to records concerning any individual who has been a patient, irrespective of whether or when such individual ceases to be a patient.

 

* * *

 

(f) Penalties. Any person who violates any provision of this section or any regulation issued pursuant to this section shall be fined in accordance with title 18, United States Code.

 

This statute and the regulations interpreting it (42 C.F.R. '' 2.1 et seq.) prohibit the disclosure and use in a criminal prosecution of any record or other information in the possession of a hospital relating to the identity, diagnosis, prognosis, or treatment, and which was gathered and maintained in connection with the performance of activity relating to substance abuse prevention and treatment.

Of true interest is the regulation enacted to implement the statute. 42 C.F.R. '2.11, which effectuates the statute (see '290dd-2(g)), defines treatment as the management and care of a patient suffering from alcohol or drug abuse, a condition which is identified as having been caused by that abuse, or both, in order to reduce or eliminate the adverse effects upon the patient. Realistically, treatment received for his injuries which occurred as a result of a DWI accident, seemingly fall within the purview of the regulation. The broad regulatory definition, a condition which is identified as having been caused by that abuse, clearly encompasses conditions such as a broken arm or lacerations which befall an intoxicated motorist as the result of a DWI accident. Thus, subject to the following, this federally created right of privacy falls into position in virtually every situation in which an injured defendant receives care.


Section 290dd-2 covers only federally assisted entities. Even so, most modern medical facilities will fall within the meaning of this term. Nearly all, for instance, are certified Medicare providers (see, 42 C.F.R. '(b)(2)(I)) and are established in buildings which were built with the assistance of Federal funds (see, 42 C.F.R. '2.12(b)(3)(I)). Further, a major medical facility may be federally assisted in the form of artwork which was funded in part by a grant from the National Endowment for the Arts (see, 42 C.F.R. '2.12(b)(3)(I)). Additionally, such facilities may likewise qualify as a result of tax exempt status granted by the Internal Revenue Service (see, 42 C.F.R. '2.12 (b)(4)).

Assuming the forgoing criteria have been met, the scope of information covered by '290dd-2 is not limited to written records, but also includes unrecorded observations and other information known to the staff of the hospital. 42 C.F.R. '2.12(a)(1) sets forth that:

The restriction on use of information to initiate or substantiate

any criminal charges against a patient or to conduct any criminal

investigation of a patient . . . applies to any information,

whether or not recorded which is . . . alcohol abuse information

obtained by a federally assisted alcohol abuse program. . . for

the purpose of treating alcohol or drug abuse, making a

diagnosis for the treatment, or making of a referral for the

treatment.

 

Finally, '2.13 Confidentiality Restrictions makes clear that information retrieved as a result of the foregoing relationship is deemed confidential, even in the course of a state criminal proceeding.

(a) Confidentiality restrictions.

The patient records to which these regulations apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority. Any disclosure made under these regulations must be limited to that information which is necessary to carry out the purpose of the disclosure.

 

(b) Unconditional compliance required.


The restrictions on disclosure and use in these regulations apply whether the holder of the information believes that the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for a disclosure or use which is not permitted by these regulations.

Further, even the presence of an individual in a medical facility under the foregoing criteria is deemed confidential in the absence of a patient waiver:

(c) Acknowledging the presence of patients: Responding to requests.

(1) The presence of an identified patient in a facility or component of a facility which is publicly identified as a place where only alcohol or drug abuse diagnosis, treatment, or referral is provided may be acknowledged only if the patient's written consent is obtained in accordance with subpart C of these regulations or if an authorizing court order is entered in accordance with subpart E of these regulations. The regulations permit acknowledgment of the presence of an identified patient in a facility or part of a facility if the facility is not publicly identified as only an alcohol or drug abuse diagnosis, treatment or referral facility, and if the acknowledgment does not reveal that the patient is an alcohol or drug abuser.

 

Despite what appears to be a targeted situation, we have yet to see this provision used in a DWI accident. Clearly, its potential is broad indeed.



[1]People v Petro (1986, 3d Dept) 122 App Div 2d 309, 504 NYS2d 67.

[2] Id. at 310; see also, People v Hess (1988, 3d Dept) 140 App Div 2d 895, 528 NYS2d 921, app den 72 NY2d 957, 534 NYS2d 671, 531 NE2d 303.

[3] People v Hedges (1983, 4th Dept) 98 App Div 2d 950, 470 NYS2d 61.

[4] Id.; citing, Klein v Prudential Ins. Co. (1917) 221 NY 449, 117 NE 942; Patten v United Life & Acc. Ins. Ass'n (1892) 133 NY 450, 31 NE 342; Edington v Aetna Life Ins. Co. (1879) 77 NY 564.

[5] People v Ackerson (1991) 149 Misc 2d 882, 566 NYS2d 833.

[6] See e.g. People v Shapiro (1955) 308 NY 453, 126 NE2d 559, 51 ALR2d 515; and see, Munzer v State (1943, Ct Cl) 41 NYS2d 98 (cited by the Court in Ackerson ).

[7] People v Osburn (1989, 4th Dept) 155 App Div 2d 926, 547 NYS2d 749, app den 75 NY2d 816, 552 NYS2d 566, 551 NE2d 1244.

[8] Id. at 927.

[9]People v Kral (1993, App Div, 3d Dept) 603 NYS2d 1004, app den 82 NY2d 926.

[10]Penal Law ' 125.12.

[11]Penal Law ' 125.10.

[12]Vehicle and Traffic Law ' 1192(2), (3).

[13]Note that the court "unequivocally condemn[ed]" the issuance of a subpoena duces tecum returnable to the prosecutor's office in advance of trial.

[14]People v Petro (1986, 3d Dept) 122 App Div 2d 309, 504 NYS2d 67.

[15]Grand Jury Subpoena Duces Tecum etc. v Kuriansky (1987) 69 NY2d 232, 239, 513 NYS2d 359, 505 NE2d 925, cert den 482 US 928, 96 L Ed 2d 698, 107 S Ct 3211; Prink v Rockefeller Center, Inc. (1979) 48 NY2d 309, 314, 422 NYS2d 911, 398 NE2d 517.

[16]Koump v Smith (1969) 25 NY2d 287, 303 NYS2d 858, 250 NE2d 857.

[17]Dillenbeck v Hess (1989) 73 NY2d 278, 539 NYS2d 707, 536 NE2d 1126.

[18]McMahon v Estate of Marianacci (1993, App Div, 4th Dept) 604 NYS2d 656.



[i].Matter of Doe v Coughlin (1987) 71 NY2d 48, 52, 523 NYS2d 782, rearg den, 70 NY2d 1002, 521 NE2d 446, 526 NYS.2d 438, cert den, 488 US 879, 109 S Ct. 196, 102 LEd2d 166.

2.Olmstead v United States, 277 US 438, 478 [Brandeis, J., dissenting].

3.Davis v Supreme Lodge, Knights of Honor, 165 NY 159, 163.

4.Dillenbeck v Hess (1989) 73 NY2d 278, 539 NYS2d 707, quoting, Developments in the Law, Medical and Counseling Privileges, 98 Harv L Rev 1530, 1548 [1985].

[v].Id at 395-396, citing, Fisch, NY Evidence ' 557; 8 Wigmore, Evidence ' 2380a [McNaughton rev 1961]; Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of Evidence, 10 U Chi L Rev 285 [1942]; Lipscomb, Privileged Communications Statute‑‑Sword and Shield, 16 Miss LJ 181 [1944]; Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale LJ 607 [1943]; see also, Dillenbeck v Hess, at 285, citing inter alia, Goldberg, The Physician‑Patient Privilege‑‑An Impediment to Public Health, 16 Pac LJ 787, 788‑789 [1985].

[vi].Dillenbeck v Hess, supra; citing, Fisch, NY Evidence ' 557 [2d ed]; Goldberg, "The Physician‑Patient Privilege‑‑An Impediment to Public Health," 16 Pac LJ 787, 788‑789 [1985].

[vii].Dillenbeck v Hess, supra, citing, McCormick, Evidence ' 105, at 259 [3d ed]; Goldberg, op. cit., at 803.

[viii].See, Steinberg v New York Life Ins. Co, 263 NY 45, 48, 188 NE 152; The Duchess of Kingston's Trial, 20 How St Trials 355, 573 [1776]; Shuman, The Origins of the Physician‑Patient Privilege and Professional Secret, 39 Sw LJ 661, 671 [1985].

[ix].See, 2 Rev Stat of NY, part III, ch 7, tit 3, ' 73 [1828]; CPA '352.

[x].See, Edington v Mutual Life Ins. Co., 67 NY 185, 194.

[xi].Dillenbeck v Hess (1989) 73 NY2d 278, 539 NYS2d 707, quoting, Fisch, NY Evidence ' 544, at 361 [2d ed].

[xii].Steinberg v New York Life Ins. Co, 263 NY 45, 48, 188 NE 152.

[xiii].Green v Metropolitan St. Ry. Co., 171 NY 201, 204, 63 NE 958.

[xiv].Williams v Roosevelt Hosp. (1985) 66 NY2d 391, 395, 497 NYS2d 348.

[xv].Hughson v St. Francis Hospital (1983, 2nd Dept) 93 AD2d 491, 463 NYS2d 224.

[xvi].Grand Jury v Kuriansky (1987) 69 NY2d 232, 239, 513 NYS2d 359; Prink v Rockefeller Center (1978) 48 NY2d 309, 314, 422 NYS2d 911, cer den, Y and X v Kuriansky, 482 US 928, 96 L Ed2d 698, 107 S Ct. 3211.

[xvii].Re Meyer, 184 NY 54, 58, 76 NE 920.

[xviii].Re Warrington 303 NY 129, 136, 100 NE2d 170; see, Hughson v St. Francis Hospital (1983, 2nd Dept) 93 AD2d 491, 463 NYS2d 224.

[xix].People v Wilkins (1985) 65 NY2d 172, 490 NYS2d 759.

[xx].See, People v Ackerson, (1991) 149 Misc2d 882, 566 NYS2d 833.

[xxi].Matter of a Grand Jury Investigation of Onondaga County (1983) 59 NY2d 130, 463 NYS2d 758 ["a broad and liberal construction to carry out its policy"]. Perhaps the best rule of construction is that cited by the dissent in Williams v Roosevelt Hospital (1985, 1st Dept) 108 AD2d 9, 487 NYS2d 767, affd, 66 NY2d 391, 488 NE2d 94, 497 NYS2d 348: "In interpreting the scope and application of a statutorily created privilege it is an oft‑stated principle that the statute creating a privilege must be given a broad and liberal construction in favor of the protection of confidential communications, while a statute waiving or suspending the privilege must be 'strictly construed and confined to the specific exception created by it'" Williams v Roosevelt Hospital (dissent per Carro, J., quoting in part Matter of Investigation of Criminal Abortions, 286 App Div 270, 274, lv denied 309 NY 1031; see, also, Matter of Keenan v Gigante (1979) 47 NY2d 160, 166, 167, 417 NYS2d 226, cert den, Gigante v Lankler, 444 US 887, 62 L Ed2d 118, 100 S Ct. 181.

22.Hughson v St. Francis Hosp., (1983, 2nd Dept) 93 AD2d 491, 499, 463 NYS2d 224.

[xxiii].CPLR 4504(a).

[xxiv].Williams v Roosevelt Hospital, supra.; Hughson v St. Francis Hosp., supra.

[xxv].Williams v Roosevelt Hospital, at 396.

[xxvi].Henry v Lewis (1984, 4th Dept) 102 AD2d 430, 478 NYS2d 263.

[xxvii].Patten v United Life & Acc. Ins. Assn., 133 NY 450, 453 (this of course assumes that the patient's illness would be apparent to all viewing him or her. Testimony would still be precluded as to the "character of the disease or ailment for which the [patient] was being treated" [Lorde v Guardian Life Ins. Co. of Amer., 252 App Div 646, 649]).

[xxviii].See, People v Wilkins (1985) 65 NY2d 172, 176, 490 NYS2d 759; see also, Prink v Rockefeller Center (1978) 48 NY2d 309, 422 NYS2d 911.

[xxix].Edington v Mutual Life Ins. Co. of N. Y., 67 NY 185, 194.

[xxx].Matter of Grand Jury Investigation of Onondaga County (1983) 59 NY2d 130, 134, 463 NYS2d 758, quoting, Klein v Prudential Ins. Co. of Amer., 221 NY 449, 453; Patten v United Life & Acc. Ins. Assn., 133 NY 450, 453; Edington v Ætna Life Ins. Co., 77 NY 564, 570.

[xxxi].People v Hedges (4th Dept. 1983) 98 AD2d 950, 470 NYS2d 61.

[xxxii].Id. (citing Klein v Prudential Ins. Co. of Amer., 221 NY 449, 453, 117 NE 942; Patten v United Life & Acc. Ins. Assn., 133 NY 450, 453, 31 NE 342; Edington v Ætna Life Ins. Co., 77 NY 564, 570).

[xxxiii].People v Newman, (1973) 32 NY2d 379, 345 NYS2d 502, cer den, New York v Newman, 414 US 1163, 39 L Ed2d 116, 94 S Ct 927.

[xxxiv].Matter of Grand Jury Investigation of Onondaga County, supra.

[xxxv].People v Petro (1986, 3rd Dept) 122 AD2d 309, app den, People v Petro, 68 NY2d 772, 506 NYS2d 1056, 498 NE2d 158.

[xxxvi].People v Christopher (1984, 4th Dept) 101 AD2d 504, 530, 476 NYS2d 640, rvd on oth grnds (1985) 65 NY2d 1054, 494 NYS2d 1033, 484 NE2d 1055.

37.(4th Dept, 1996) 229 A.D.2d 954, 645 N.Y.S.2d 381.

[xxxviii].Bernstein v Lore (1977, 4th Dept) 59 AD2d 650, 398 NYS2d 388; People v Christopher, supra.

[xxxix].Supra.

[xl].Rivera v Coughlin (1987, 3rd Dept) 133 AD2d 694.

[xli].Rivera v Coughlin (1987, 3rd Dept) 133 AD2d 694; Malus v Sperry‑Rand Corp., 2 AD2d 877, rearg denied, lv denied 2 AD2d 967, lv dismissed 2 NY2d 851.

[xlii].Koump v Smith (1969) 25 NY2d 287, 303 NYS2d 858.

[xliii].Supra.

[xliv].See, Constantine v Diello (1965, 3rd Dept) 24 AD2d 821.

[xlv].Id at 299.

[xlvi].Id at 300.

[xlvii].See, Dillenbeck v Hess (1989) 73 NY2d 278, 539 NYS2d 707 at n.5.

[xlviii].(1989) 73 NY2d 278, 539 NYS2d 707.

[xlix].Id. at 289.

[l].(1983) 60 NY2d 452, 470 NYS2d 122.

[li].Id at 471-462.

52.159 Misc.2d 748, 611 N.Y.S.2d 85.



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