Clark v. Geraci

• Decision Date: 18 October 1960
• Citation: 29 Misc.2d 791,208 N.Y.S.2d 564
• Parties: Robert S. CLARK v. Vincent J. GERACI.
• Court: New York Supreme Court

Page 564

208 N.Y.S.2d 564

29 Misc.2d 791

Robert S. CLARK v. Vincent J. GERACI.

Supreme Court, Trial Term, Kings County, Part XVII.

Oct. 18, 1960.

Leonard J. Meiselman, New York City, for plaintiff.

Garbarini & Kroll, New York City, for defendant (Francis J. Alwill, New York City, of counsel).

BENJAMIN BRENNER, Justice.

Plaintiff, an accountant, long in the civilian employ of the U. S. Air Force, was discharged therefrom following receipt of a letter addressed to it by his doctor, the defendant, which established that plaintiff's absences were due to alcoholism. The doctor had alerted plaintiff that the letter was requested by the Air Force because the underlying cause of plaintiff's illness had not been set out in prior medical certificates issued by him in behalf of the plaintiff to explain such absences. The formal notice of discharge listed plaintiff's repeated absences, recited the doctor's letter and rejected plaintiff's attempt to attribute the absences to a series of misfortunes. It is plaintiff's contention that he requested the doctor not to send the letter, that his discharge was due directly to it and that he could not find permanent employment thereafter.

On trial plaintiff urged three theories of action: (1) that in mailing the letter the doctor committed an unlawful act which constituted malpractice for the reason that it divulged a confidential communication; (2) that even if the mailing of the letter were lawful it is actionable for prima facie tort in that it was deliberately sent against plaintiff's specific plea that it be withheld, and (3) that the contents of the letter were untrue and thus gave rise to an action in negligence.

A doctor is indeed a confidante of medical information and knowledge that come to him while treating his patient. Dr. Geraci learned that plaintiff had taken to drink as a means of meeting his social problems. He repeatedly treated him for asthmatic bronchitis and respiratory infections which were the ill effects thereof. His disclosure of that information is defined as unprofessional conduct by Article 2, section 30 of the Regulations of the Commissioner of Education, made pursuant to the Education Law:

'4. 'Unprofessional conduct in the practice of medicine' shall include but not be limited to the following:

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'c. The revealing of facts, data, or information obtained in a professional capacity relating to a patient or his records without first obtaining consent of the patient or his duly authorized representative, except if duly required by a court of competent jurisdiction.'

He is, by another statute, specifically enjoined from giving evidence of such information when called upon to testify as a witness (Civil Practice Act, § 352). So, while no principle of common law is violated (Wigmore on Evidence, 3rd Ed., § 2380), disclosure is plainly reprehensible as indicated by the statutory law in this state, accepted usage and the Hippocratic oath, for information possessed by the doctor of the illness of his patient has long been thought of as a protected professional confidence upon which every patient may rely.

Yet I have been unable to discover, nor have the parties brought to my attention, any New York case dealing with the subject, apart from the giving of testimony in an action at law. Other jurisdictions have recognized that a disclosure may be actionable. Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814; Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831, 9 A.L.R. 1250; Smith v. Driscoll, 94 Wash. 441, 162 P. 572, L.R.A. 1917C, 1128. I believe that the cause should also be recognized in this state because the duty of secrecy is implied by our statutory law and widely conceived in the doctor-patient relationship.

It is, however, the doctor's claim that he had an overriding duty to make a disclosure of the underlying cause of plaintiff's illnesses and absences when required by a military unit of the United States Government so to do, especially since he had previously supplied incomplete information. The delicate balance of conflicting duties must thus be weighed (Berry v. Moench, supra; Simonsen v. Swenson, supra) to determine the doctor's paramount duty. Was the duty to divulge the employee's weakness which, conceivably could be used to rid the government of a worthless servant and thereby save public funds, greater than the duty to maintain a confidential professional communication?

Had the disclosure risen to the level of a need to safeguard the security of the government or the safety of the public, as in a case of a disclosure of a communicable disease (Simonsen v. Swenson, supra), it would, of course, be quite simple to find that the doctor's duty to disclose overrode his duty to remain silent. In view of the prior incomplete medical certificates requested by the plaintiff and supplied by the doctor to explain the former's absences, it may similarly be said that his right, if not duty to his government, to make a full disclosure of the facts superseded his duty to the patient to remain silent.

This leads directly to the issue of waiver. The prior requested medical certificates not only set forth the fact of illness but described plaintiff's trouble to have consisted of ailments without disclosure that many of them, such as the bronchial and respiratory difficulties, was due to alcoholism. These requested certificates constituted plaintiff's waiver of the privilege at least as to those illnesses which were described. The question is, assuming it to be true that plaintiff had specifically requested the doctor not to dispatch the...