Doe Children, Matter of

• Decision Date: 07 March 1978
• Citation: 93 Misc.2d 479,402 N.Y.S.2d 958
• Parties: In the Matter of the DOE * CHILDREN, children under eighteen years alleged to be neglected by Alice Doe * , Respondent. Family Court, City of New York, Queens County
• Court: New York City Court

Page 958

402 N.Y.S.2d 958

93 Misc.2d 479

In the Matter of the DOE ^* CHILDREN, children under eighteen years alleged to be neglected by Alice Doe ^*, Respondent Family Court, City of New York, Queens County.

March 7, 1978.

Alan G. Krams, New York City, for Com'r of Social Services.

Helen Mackler, New York City, law guardian for the children.

Richard Asher, New York City, for respondent.

Flushing Queens Medical Associates, pro se.

DECISION on MOTION and ORDER

SAUL MOSKOFF, Judge:

The Commissioner of Social Services moves for an order:

1) requiring Flushing Queens Medical Associates ( "Medical Associates" ) to produce its records on the respondent, for use as evidence in this proceeding, and

2) requiring Ms. N., a counselor at Medical Associates to give testimony in this proceeding, and

3) permitting the petitioner to examine all of the urine test reports in the Medical Associates records on the respondent.

The motion to order the Medical Associates to produce its records on the respondent, for use as evidence in this proceeding is granted.

The Medical Associates in opposition to the motion, has submitted Department of Health, Education and Welfare Rules and Regulations on the confidentiality of alcohol and drug abuse patient records. According to these regulations:

"records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function conducted, regulated or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section." 21 U.S.C. § 1175(a).

The required confidentiality of patient records as stated above, is qualified by section (b)(2)(C) which permits disclosure of relevant records without the consent of the patient,

"If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services." 21 U.S.C. § 1175(b)(2)(C).

As stated in this section, it is the duty of the court to weigh the public interest and the need for disclosure against the injury to the patient. In assessing the public interest, the court must consider the safety and welfare of the three children who are alleged to be neglected. The purpose of the child protective proceeding, is "to help protect children from injury or mistreatment and to help safeguard their physical, mental and emotional well-being." Family Court Act Section 1011. This Court is of the opinion that the interest of these young children in living in secure surroundings outweighs any possible injury to the patient, or to the physician-patient relationship. The private nature of a Family Court proceeding, and the fact that "the records of any proceeding in the Family Court shall not be open to indiscriminate public inspection" (Family Court Act section 166) minimizes the likelihood of the respondent's status becoming a matter of public record. Thus, this Court finds that there is good cause for disclosure of the requested records, as required by 21 U.S.C. § 1175.

Moreover, the Medical Associates are required to produce the records under the authority of section 1038 of the Family Court Act. This section states:

"Each hospital and any other public or private agency having custody of any records, photographs or other evidence relating to abuse or neglect, upon the subpoena of the court, the corporation counsel, county attorney, district attorney, counsel for the child, or one of the parties to the proceeding, shall be required to send such records, photographs or evidence to the court for use in any proceeding relating to abuse or neglect . . . " (Emphasis added).

The fact that hospital and agency records are required to be produced in abuse and neglect proceedings evinces a legislative intent, at least in New York, to give greater protection to the interests of allegedly neglected children than to the interest of the patient in confidentiality. As stated in the Family Court Act, "neither the privilege attaching to confidential communications between . . . the physician-patient and related privileges . . . shall be a ground for excluding evidence which otherwise would be admissible." Family Court Act Sec. 1046(a)(vii).

Several cases have pointed up how the special...