Application to Quash a Subpoena Duces Tecum in Grand Jury Proceedings, Matter of

• Decision Date: 17 June 1982
• Citation: 452 N.Y.S.2d 361,437 N.E.2d 1118,56 N.Y.2d 348
• Parties: , 437 N.E.2d 1118 In the Matter of an APPLICATION TO QUASH A SUBPOENA DUCES TECUM IN GRAND JURY PROCEEDINGS. John DOE (Anonymous Name for Petitioners), Appellants; The PEOPLE of the State of New York, Respondent. (And Another Proceeding.)
• Court: New York Court of Appeals Court of Appeals

Page 361

452 N.Y.S.2d 361

56 N.Y.2d 348, 437 N.E.2d 1118

In the Matter of an APPLICATION TO QUASH A SUBPOENA DUCES TECUM IN GRAND JURY PROCEEDINGS John DOE (Anonymous Name for Petitioners), Appellants The PEOPLE of the State of New York, Respondent (And Another Proceeding.)

Court of Appeals of New York.

June 17, 1982.

Charles G. Moerdler, Bruce H. Schneider and Amy S. Klein, New York City, for appellants

Edward J. Kuriansky, Deputy Atty. Gen. (Arthur G. Weinstein and Jon M. Bevilacqua, Sp. Asst. Attys. Gen., of counsel), for respondent.

OPINION OF THE COURT

GABRIELLI, Judge.

We hold today that a hospital being investigated by a Grand Jury in connection with possible crimes committed against its patients by the hospital staff may not successfully assert the physician-patient (CPLR 4504) or social worker-client (CPLR 4508) privileges, or the patient's right to privacy, in opposition to a Grand Jury subpoena calling for the hospital's records. Additionally, the conditional bar to discovery of material prepared for litigation provided by CPLR 3101 (subd. ) does not apply in the face of a valid Grand Jury subpoena duces tecum.

In July, 1981, the Deputy Attorney-General for Medicaid Fraud Control issued two Grand Jury subpoenas, one to appellant hospital and the other to its executive vice-president, calling for the production of hospital records relating to a patient, Maria M., who had died in the hospital. The hospital moved to quash the subpoenas based on the assertions that the physician-patient privilege applied, that the subpoenas violated the patient's right to privacy, and that portions of the requested matter were material prepared for litigation. In response to the motion to quash, the Deputy Attorney-General demonstrated that the subpoenas were issued as part of an investigation into possible "no coding" at the hospital, a procedure under which various lifesaving and support measures are selectively denied to certain seriously ill patients.

Special Term denied the motion to quash and the Appellate Division affirmed. Following the Appellate Division determination in the Maria M. case, the Grand Jury issued a subpoena to the hospital calling for the production of hospital records relating to a second deceased patient, Daisy S. Again, a motion was made to quash the subpoena. In addition to asserting the physician-patient privilege and the patient's constitutional right to privacy, the hospital maintained that the social worker privilege of CPLR 4508 barred production of the files requested by this third subpoena. In support of this latter argument, the hospital contended that the social worker assigned to Daisy S. had made several notations in her medical record. This subpoena was upheld in the courts below and the appeal has been consolidated in our court with the appeal relating to the Maria M. subpoenas. We now affirm in both cases. People v. Doe, 86 A.D.2d 672, 446 N.Y.S.2d 382; People v. Doe, 87 A.D.2d 595, 450 N.Y.S.2d 411.

Initially, we note that our courts have traditionally given the Grand Jury the widest possible latitude in the exercise of its powers to inquire into possible criminal activity (People v. Stern, 3 N.Y.2d 658, 661, 171 N.Y.S.2d 265, 148 N.E.2d 400). Nevertheless, the evidentiary privileges have by and large been held to apply to Grand Jury proceedings (People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S.2d 551, 138 N.E.2d 794). Each of the privileges is designed to encourage a particular form of behavior or to serve a certain desirable purpose. These privileges exact a heavy toll, however, because they tend to keep otherwise competent evidence from the reach of the Grand Jury and the courts (see 8 Wigmore, Evidence § 2380a). Accordingly, where the application of a privilege will not serve to further the legitimate purposes for which it was created, there is little reason to permit its invocation.

The physician-patient privilege, which guarantees the confidentiality of a communication between patient and doctor, is designed in large measure to encourage full disclosure by the patient so that he can secure appropriate treatment from the physician (see Richardson, Evidence § 428; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4504.02). The privilege, of course, belongs to the patient, but may be asserted by the physician for the patient's protection where the patient has not waived his privilege. A pragmatic limitation upon this rule, which has been given effect in our State, is that a person or entity subject to proceedings for having committed crimes against an individual should not be...