Dillenbeck v. Hess

Citation539 N.Y.S.2d 707,73 N.Y.2d 278,536 N.E.2d 1126
Parties, 536 N.E.2d 1126 Donald R. DILLENBECK, as Administrator of the Estate of Tonia R. Dillenbeck, Deceased, et al., Appellants, v. Sherry L. HESS et al., Respondents.
Decision Date23 February 1989
CourtNew York Court of Appeals
OPINION OF THE COURT

ALEXANDER, Judge.

In Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857, we noted that a litigant does not waive the physician-patient privilege merely by defending a personal injury action in which his or her mental or physical condition is in controversy unless, in so defending, the litigant "affirmatively asserts the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff" (id., at 294, 303 N.Y.S.2d 858, 250 N.E.2d 857). Today, we hold that where a party defending a personal injury action validly asserts the privilege and has not affirmatively placed his or her medical condition in issue, the plaintiff may not effect a waiver of the privilege merely by introducing evidence demonstrating that the defendant physical condition is genuinely "in controversy" within the meaning of the statute permitting discovery of medical records (CPLR 3121[a] ).

I.

The complaint states that on July 13, 1985, Tonia Dillenbeck was killed and her son, Michael Dillenbeck, was seriously injured when their automobile collided head on with another vehicle driven by defendant, Sherry Hess. It is alleged that the accident occurred when defendant, who was traveling north on Route 7 in the Town of Conklin, negligently crossed the center line and struck the Dillenbecks' vehicle as it was traveling in the southbound lane. The complaint charges that defendant's intoxicated condition was a proximate cause of the accident and that the codefendants, owners and operators of Red's Good Luck Tavern and Eddie's Conklin Inn where defendant allegedly had been drinking throughout much of the afternoon and evening, negligently contributed to her intoxication by serving excess quantities of alcohol to her. The police accident report notes the time of the accident as 9:45 P.M.

It is not disputed that defendant received serious injuries in the accident and was hospitalized immediately thereafter. Although it appears that a blood alcohol test was performed at the hospital for diagnostic purposes, no test to determine blood alcohol content was administered at the direction of a police officer or by court order pursuant to Vehicle and Traffic Law § 1194. 1 In her answer, defendant simply denies the allegations in the complaint and asserts the affirmative defenses of comparative negligence and the failure of plaintiffs to wear available seat belts. 2

Alleging that defendant's hospital records contain evidence of her blood alcoh content at the time of the accident, plaintiffs moved, pursuant to CPLR 3121(a), to compel defendant to disclose any medical records relating to her physical condition on the date of the accident, including the results of any blood alcohol test administered to defendant upon her admission to the hospital. The papers submitted in support of the motion included an affidavit by plaintiffs' attorney, the police accident report, and three affidavits of persons who claim to have been with defendant prior to the accident and to have observed her consume alcohol over approximately a seven-hour period. Plaintiffs also submitted excerpts from defendant's examination before trial wherein she claimed to have no memory of the events occurring prior to the accident except that she remembered being at Red's Good Luck Tavern earlier in the day for a union meeting and having one drink while she was there. Excerpts from the deposition testimony of the manager of Eddie's Conklin Inn, where defendant allegedly continued to imbibe after leaving Red's Good Luck Tavern, reveal that following the accident the manager was informed by his bartender that on the night of the accident the bartender had "shut off" a woman from alcoholic beverages because she had been drinking excessively and that the woman might have been defendant. 3

By cross motion defendant sought an order of protection (CPLR 3122), asserting the physician-patient privilege (CPLR 4504). Supreme Court denied plaintiffs' motion and granted defendant's cross motion, concluding that inasmuch as defendant had not affirmatively placed her physical condition in issue, the physician-patient privilege precluded discovery of her medical records (CPLR 3101[b]; 4504[a] ).

A majority of the Appellate Division affirmed, stating that although defendant's physical condition at the time of the accident "is undeniably in issue", defendant had not affirmatively placed her condition in controversy and that under Koump v. Smith (supra) the privilege is not waived where the defendant simply denies the allegations in the complaint (140 A.D.2d 766, 767, 527 N.Y.S.2d 647). The court concluded further that defendant had not waived the privilege in testifying that she suffers from amnesia concerning the accident since she was not seeking damages for that condition nor was she claiming that her amnesia in any way excused her conduct (id., at 767, 527 N.Y.S.2d 647). The two dissenters, relying on Judge Bergan's concurrence in Koump, would have allowed inspection of defendant's hospital records, concluding that the privilege must yield where, as here, plaintiffs submit evidence demonstrating that defendant's physical condition is genuinely "in controversy".

The Appellate Division granted leave to appeal positing the following certified question: "Did this court err as a matter of law in affirming the order of the Supreme Court which denied plaintiffs' motion for discovery of defendant Sherry L. Hess' medical and hospital records and granted said defendant's cross motion for an order of protection?" We now affirm and answer the certified question in the negative.

II.

The physician-patient privilege, presently contained in CPLR 4504, is entirely a creature of statute. At common law, confidential communications between physicians and patients received no protection against disclosure in a legal proceeding, however unethical such disclosure may have been viewed when occurring outside the courtroom (Fisch, N.Y. Evidence § 541 [2d ed.]; McCormick, Evidence § 98 [3d ed.]; see, Williams v. Roosevelt Hosp., 66 N.Y.2d 391, 395, 497 N.Y.S.2d 348, 488 N.E.2d 94; Koump v. Smith, 25 N.Y.2d, at 293, 303 N.Y.S.2d 858, 250 N.E.2d 857, supra ). The common-law rule is perhaps best illustrated by the Duchess of Kingston's Trial, wherein the Duchess was tried for bigamy and the Crown sought to compel her physician to testify concerning certain admissions made by the Duchess in confidence. When the physician expressed reluctance to divulge the secret admissions of his patient, the court ordered him to testify, explaining: "If a surgeon was voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever" (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.L.J. 661, 671 [1985] ).

New York State became the first jurisdiction to depart from the common-law rule when it adopted the physician-patient privilege by statute in 1828 (2 Rev.Stat. of N.Y., part III, ch. 7, tit. 3, § 73 [1828] ). In its current form, the privilege prohibits disclosure of any information acquired by a physician "in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity" (CPLR 4504[a] ). 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" (Fisch, N.Y. Evidence § 544, at 361 [2d ed.]; see, 5 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4504.08; Matter of Coddington, 307 N.Y. 181, 193, 120 N.E.2d 777; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194). 4 Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient's medical files or is sought to be introduced at trial in the form of expert testimony (see, Williams v. Roosevelt Hosp., 66 N.Y.2d, at 396, 497 N.Y.S.2d 348, 488 N.E.2d 94, supra; Davis v. Supreme Lodge, Knights of Honor, 165 N.Y. 159, 163, 58 N.E. 891; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 4504.08a).

We have previously noted that this State's codification of the physician-patient privilege was based largely "on 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" (Williams v. Roosevelt Hosp., 66 N.Y.2d, at 395, 497 N.Y.S.2d 348, 488 N.E.2d 94, supra; Matter of Camperlengo v. Blum, 56 N.Y.2d 251, 254-255, 451 N.Y.S.2d 697, 436 N.E.2d 1299; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 192, supra; see, Fisch, N.Y. Evidence § 541 [2d ed.]; McCormick, Evidence § 98[3d ed.] ). Additionally, it was feared that physicians would alter or conceal the truth when forced, in the absence of any privilege, to choose between their legal duty to testify and their professional obligation to honor their patients' confidences (Fisch, N.Y. Evidence § 541 [2d ed.]; Reports of Commissioners on Revision of Statutes of N.Y., 3 Rev.Stat. of N.Y., Appendix, at 737 [1836] ). A third rationale supporting the privilege that has gained increased currency in recent years is premised on the need to protect the...

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