Doe v. Roe

• Decision Date: 21 November 1977
• Citation: 93 Misc.2d 201,400 N.Y.S.2d 668
• Parties: Jane DOE, Plaintiff, v. Joan ROE and Peter Poe, Defendants.
• Court: New York Supreme Court

Page 668

400 N.Y.S.2d 668

93 Misc.2d 201

Jane DOE, Plaintiff, v. Joan ROE and Peter Poe, Defendants.

Supreme Court, New York County.

Nov. 21, 1977.

Boyd, Holbrook & Seward, New York City, for plaintiff; John G. Lipsett, New York City, of counsel.

Karpatkin, Pollet & LeMoult, New York City, for defendants; Michael N. Pollet and Steven A. Delibert, New York City, of counsel.

DECISION

MARTIN B. STECHER, Justice:

This action for an injunction and for damages for breach of privacy is a matter of first impression in this State, and so far as I am able to ascertain, a matter of first impression in the United States. It arises out of the publication, verbatim, by a psychiatrist of a patient's disclosures during the course of a lengthy psychoanalysis. I have made and filed detailed findings of fact which are briefly summarized here. ¹

Dr. Joan Roe is a physician who has practiced psychiatry for more than fifty years. Her husband, Peter Poe, has been a psychologist for some 25 years. The plaintiff and her late, former husband were each patients of Dr. Roe for many years. The defendants, eight years after the termination of treatment, published a book which reported verbatim and extensively the patients' thoughts, feelings, and emotions, their sexual and other fantasies and biographies, their most intimate personal relationships and the disintegration of their marriage. Interspersed among the footnotes are Roe's diagnoses of what purport to be the illnesses suffered by the patients and one of their children.

The defendants allege that the plaintiff consented to this publication. This defense is without substance. Consent was sought while the plaintiff was in therapy. It was never obtained in writing. In Dr. Roe's own words consent "was there one day and not there another day. That was the nature of the illness I was treating, unreliable." I need not deal with the value of an oral waiver of confidentiality given by a patient to a psychiatrist during the course of treatment. It is sufficient to conclude that not only did the defendants fail to obtain the plaintiff's consent to publication, they were well aware that they had none.

The plaintiff seeks to prevail on any or all of four theories: that violation of subdivision (a) of Section 4504 CPLR gives rise to a cause of action ²; that the provisions of the Education Law ( § 6509) and the Regulations of the Commissioner of Education (8 NYCRR 60.1, subd. (d)(3)) ³ establish a public policy whose breach gives rise to a cause of action in tort; that the physician-patient relationship is contractual and in it there is implied the physician's promise to obey the Hippocratic Oath ⁴ whose violation gives rise to a cause of action for breach of contract; and, finally, "in light of the expanding recognition of privacy actions" (Doe v. Roe, 42 A.D.2d 559, 345 N.Y.S.2d 560, aff'd, 33 N.Y.2d 902, 352 N.Y.S.2d 626, 307 N.E.2d 823, cert. granted 417 U.S. 907, 94 S.Ct. 2601, 41 L.Ed.2d 210, cert. dismissed 420 U.S. 307, 95 S.Ct. 1154, 43 L.Ed.2d 213) a separate cause of action exists for unreasonably publicizing elements of plaintiff's life which ought to have been left in confidence.

The defendants contend not only that there was no unlawful disclosure, the patient's identity having been fully concealed, but that no right of action exists even if the plaintiff is recognizable in this volume. The defendants assert that neither the "evidentiary privilege" contained in CPLR 4504(a) nor the regulations of the Commissioner of Education, by their history, are intended to give rise to a cause of action for their violation; that the only cause of action for invasion of privacy recognized in the state of New York is the statutory cause of action set forth in Sections 50 and 51 of the Civil Rights Law; that the invasion of privacy concept as developed in the Federal Courts and elsewhere is a constitutional guarantee of a right to privacy against intrusion by governments and has no reference to non-state action; that the volume in question is of such scientific merit that the professional need which it fills transcends the patient's right of non-disclosure; that the plaintiff is guilty of laches in bringing this action; and, finally, that the defendants' right to publication is protected by the first amendment to the United States Constitution.

The few New York cases dealing with a physician's unauthorized disclosure of a patient's confidences usually turn on other issues, restrict themselves for the most part to a discussion of the effect of the current evidentiary statute (CPLR 4504(a)) or its predecessor (CPA 352) and in their dicta reach contradictory conclusions. In Munzer v. Blaisdell, 183 Misc. 773, 49 N.Y.S.2d 915, aff'd as modified, 269 A.D. 970, 58 N.Y.S.2d 359, a patient in a State psychiatric institution sued its director for unauthorizedly releasing his case record in violation of the Mental Hygiene Law. The cause of action founded on CPA § 352 was dismissed because there was no physician-patient relationship between the parties. The court did, however, offer the opinion (p. 775, 49 N.Y.S.2d p. 917) that

" . . . where the statutory duty is violated, the patient is entitled to redress; for it is well settled that, where a positive duty is imposed by statute, a breach of that duty will give rise to a cause of action for damages on the part of the person for whose benefit the duty was imposed; and, in such cases, if the statute itself does not provide a remedy, the common law will furnish it. (Willy v. Mulledy, 78 N.Y. 310, 314; Racine v. Morris, 201 N.Y. 240, 244, 94 N.E. 864, 865, 866; Amberg v. Kinley, 214 N.Y. 531, 535, 108 N.E. 830, 831; 3 Cooley on Torts (4th ed.) § 477, p. 361.) This principle was recognized by the decision of the Appellate Division in the case at bar (see Munzer v. Blaisdell, 268 App.Div. 9, 48 N.Y.S.2d 355)."

In Clark v. Geraci, 29 Misc.2d 791, 208 N.Y.S.2d 564, the court found that the patient had waived the privilege and stated in a dictum that CPLR 4504(a), the Education Law ( § 6509) and the Regulations issued thereunder (8 NYCRR 60.1(d) (3)) provided no cause of action for breach of confidentiality. Felis v. Greenberg, 51 Misc.2d 441, 273 N.Y.S.2d 288, on the other hand expresses the view that such disclosure gives rise to a cause of action but turns on the sufficiency of a pleading alleging the publication of false information. Curry v. Corn, 52 Misc.2d 1035, 277 N.Y.S.2d 470, suggests that violation of CPLR 4504(a) was not intended by the Legislature to create an independent cause of action; but there the physician's disclosure was to the plaintiff's husband and the court held that a husband is entitled, as a matter of right, to be informed of his wife's medical condition. In Hammer v. Polsky, 36 Misc.2d 482, 233 N.Y.S.2d 110, the court, in a dictum, said that neither CPA 352 nor the Regulations issued under the Education Law will support a cause of action; but as in Munzer v. Blaisdell, supra, 183 Misc. 777, 49 N.Y.S.2d 918, recovery was denied on the ground that no physician-patient relationship was alleged to have existed.

The most frequently cited cases arising in other jurisdictions suffer from the same limitations. Although in Smith v. Driscoll, 94 Wash. 441, 162 P. 572 (1917), the court said 162 P. p. 572, that "for so palpable a wrong the law provides a remedy," the case turned on a question of pleading. A dictum in Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920), suggests the availability of a remedy for violation of the duty of secrecy, but the issue involved what the court held to be a limited right of disclosure of the existence of a communicable disease. The court in Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814 (1958), expressed the opinion that violation of evidentiary statutes gives rise to a cause of action, but like Felis v. Greenberg, supra, the action was for libel, the issue turning on whether or not the physician's disclosures were truthful. Alexander v. Knight, 197 Pa.Super. 79, 177 A.2d 142 (1962), similarly contains such dicta, but the action was for personal injuries sustained in an automobile accident.

In Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962), the Court, 181 A.2d at 349 states that despite the absence of a common law physician-patient privilege (cf. Matter of New York City Council v. Goldwater, 284 N.Y. 296, 31 N.E.2d 31; Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar and Masonic Mutual Aid Association, 126 N.Y. 450, 455, 27 N.E. 942, 943; Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.3d 1103 (1965); Clark v. Geraci, supra; Wigmore, Evidence, 3d ed. § 2380) "a patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property" and that a physician "was under a general duty not to disclose frivolously the information received from (the patient) or from an examination of the patient." The court, however, concluded that a physician was perfectly justified in disclosing to an insurer the heart condition of a child whose parents had applied for a policy of life insurance on that child's life.

None of the post Civil Practice Act cases had considered the effect of the repeal of Section 354 CPA. Section 352 CPA which prohibited disclosure, was carried forward verbatim into the new statute (CPLR 4504(a)). Section 354 CPA limited the application of Section 352 CPA providing in part that it applied "to any examination of a person as a witness," but this language was excluded from the new statute leaving only the broad prohibition without limitation that "a person authorized to practice medicine . . . shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity."

Where this case to turn exclusively on the application of CPLR 4504(a) it might...