New York City Council v. Goldwater

• Decision Date: 26 November 1940
• Citation: 31 N.E.2d 31,284 N.Y. 296
• Parties: NEW YORK CITY COUNCIL v. GOLDWATER, et al. In re LINCOLN HOSPITAL, BRONX.
• Court: New York Court of Appeals Court of Appeals

284 N.Y. 296

31 N.E.2d 31

NEW YORK CITY COUNCIL

v.GOLDWATER, et al.

In re LINCOLN HOSPITAL, BRONX.

Court of Appeals of New York.

Nov. 26, 1940.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the investigation by the Special Committee designated by the City Council of the City of New York to inquire into the charges by the Lincoln Hospital Alumni Association in regard to the management of Lincoln Hospital, Bronx, N. Y., wherein a special committee filed a application to direct Sigismund S. Goldwater, Commissioner of Hospitals of the City of New York, and Rudolf Rapp, Medical Superintendent of Lincoln Hospital, to show cause why a warrant should not issue for their commitment to jail until they should produce books, papers and records, specified in subpoenas served upon them. From a unanimous order of the Appellate Division, First Department, 259 App.Div. 883, 20 N.Y.S.2d 717, which affirmed an order of the Special Term, 174 Misc. 389, 20 N.Y.S.2d 712, and in which appeal was denied in 259 App.Div. 1002, 21 N.Y.S.2d 395, defendants appeal.

Reversed and application denied.

FINCH and CONWAY, JJ., dissenting. William C. Chanler, Corp. Counsel, of New York City (Seymour Quel and Oscar L. Tucker, both of New York City, of counsel), for appellants.

Thomas H. McManus, of New York City, for respondent.

LEHMAN, Chief Judge.

A special committee, appointed by the City Council of the City of New York in accordance with section 43 of the Charter of the city (effective January 1, 1938) to investigate charges of negligence and maladministration in the treatment of patients at Lincoln Hospital, has issued and served subpoenas duces tecum addressed to the Commissioner of Hospitals of the City of New York and to the Medical Superintendent of Lincoln Hospital which required the production of specified records of the hospital, including: ‘All case records, reports, charts, diagnoses, X-rays and other records relating to the following patients,’ etc. The Corporation Counsel advised the Commissioner of Hospitals and subsequently confirmed the advice by letter that ‘No information acquired by physicians or nurses in attending a patient in a professional capacity may be disclosed in any trial or court proceeding by reason of the provisions of section 352 of the Civil Practice Act, except on consent of the persons treated or their duly authorized representatives. The privilege conferred by this section applies to hospital records or documents, as well as to the personal testimony of witnesses. In my opinion, the privilege is applicable to a Councilmanic investigation.’ The Commissioner appeared before the committee and produced some of the records called for by the subpoenas, but refused to produce any case cards or records which would disclose ‘confidential information relating to the diagnosis and treatment of patients.’ Upon the application of the Special Councilmanic Committee an order was made by the Supreme Court directing the persons named in the subpoenas ‘to produce before said Committee * * * all the books, papers, records, etc., mentioned and described in the respective subpoenas duces tecum.’

The Legislature has commanded that: ‘A person duly authorized to practice physic or surgery, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity.’ Civil Practice Act, s 352. The petitioner claims, and the courts below have held, that because the command is contained in the Civil Practice Act it prohibits disclosure of such information only as evidence in an action or special proceeding brought in a court of record, and that a court may compel a physician to disclose to a committee of the Council of the city information which the physician is forbidden to divulge to a court of justice.

This court has said that: ‘The disclosure by a physician of information acquired in his professional character in attending a patient, where not made in the course of his professional duty, is a plain violation of professional propriety. But the statute does not prescribe a rule of professional conduct for the government of physicians in their general intercourse with society. The common law did not protect a physician from disclosing as a witness information acquired professionally from patients. 1 Greenl.Ev. s 248. The statute was intended to afford this protection, and to protect the patient also. If a physician, disregarding the plain obligations of his situation, should in conversation disclose the secrets of his patient, he would, so far as we know, violate no statute, however reprehensible his conduct would be. The statute should have a broad and liberal construction, to carry out its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or on oral examination, involving a disclosure of confidential information acquired in attending a patient, unless the seal of secrecy is removed by the patient himself.’ Buffalo Loan, Trust & Safe-Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N.Y. 450, at page 455,27 N.E. 942, at page 943,22 Am.St.Rep. 839.

Though at common law a physician, unlike a member of the bar, might be compelled to divulge as a witness information acquired by him under the seal of professional confidence, yet in the Civil Practice Act the privilege and duty of a clergyman to refuse to disclose a confession (s 351), the privilege and duty of a physician to refuse to disclose information acquired in attending a patient in order to enable him to treat the patient (s 352), and the privilege and duty of an attorney to refuse to disclose confidential communications from a client (s 353), are accorded the same statutory recognition, sanction and protection. All three sections apply to ‘any examination of a person as a witness unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client.’ (s 354.)

Doubtless, as the court pointed out in Buffalo Loan, Trust & Cafe Deposit Co. v. Knights Templar & Masonic Mut. Aid Ass'n, 126 N.Y. 450, 454,27 N.E. 942, 943,22 Am.St.Rep. 839, ‘the primary purpose of the section was to declare the rule governing the examination of a physician as a witness in judicial proceedings.’ (Italics are new.) All the suctions to which we have referred are part of article 33 of the Civil Practice Act, which is entitled ‘Evidence,’ and the term ‘evidence’ is applied ordinarily to proof received in judicial proceedings. Nevertheless, the statute in terms to ‘any...