Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, Y., M.D., P.C. v. Kuriansky

• Decision Date: 14 December 1984
• Citation: 505 N.E.2d 925,69 N.Y.2d 232,513 N.Y.S.2d 359
• Court: New York Court of Appeals Court of Appeals
• Parties: , 505 N.E.2d 925, 55 USLW 2523, Medicare & Medicaid Guide P 36,242 In the Matter of the GRAND JURY SUBPOENA DUCES TECUM DATED

Page 359

513 N.Y.S.2d 359

69 N.Y.2d 232, 505 N.E.2d 925, 55 USLW 2523,

Medicare & Medicaid Guide P 36,242

In the Matter of the GRAND JURY SUBPOENA DUCES TECUM DATED

DECEMBER 14, 1984, Y., M.D., P.C., Respondent-Appellant, v. Edward KURIANSKY, as Deputy Attorney-General of the State of

New York, Appellant-Respondent.

In the Matter of the GRAND JURY SUBPOENA DUCES TECUM DATED

DECEMBER 14, 1984, X., M.D., Respondent-Appellant, v. Edward KURIANSKY, as Deputy Attorney-General of the State of

New York, Appellant-Respondent.

Court of Appeals of New York.

Feb. 19, 1987.

Certiorari Denied June 15, 1987.

See 107 S.Ct. 3211.

Edward J. Kuriansky, Deputy Atty. Gen., pro se.

Robert Dublirer, Donald H. Zuckerman and Lawrence N. Gray, New York City, for Edward J. Kuriansky, appellant-respondent.

Gerald B. Lefcourt, Lawrence S. Goldman, Erica Horwitz, Joshua L. Dratel and Roger Parloff, New York City, for respondents-appellants.

Joel I. Klein, Paul M. Smith and JoAnn E. MacBeth, Washington, D.C., for the New York Psychiatric Ass'n, amicus curiae.

Arthur G. Weinstein, New York City, and David Wait, Ballston Spa, for New York State Dist. Attys. Ass'n, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The physician-patient privilege originated in this State. It did not exist at common law and the first statute to recognize the privilege was adopted by the New York Legislature in 1828. This case tests that privilege against a Grand Jury subpoena.

Petitioners, two psychiatrists, have moved to quash subpoenas requiring them to produce records before a Grand Jury investigating complaints of Medicaid fraud. Their primary contentions are that compliance with the subpoenas will violate their Fifth Amendment rights, as well as the physician-patient privilege granted to their patients by statute (CPLR 4504). The trial court denied the motion but the Appellate Division modified, concluding that the physician-patient privilege applied, except as to matters necessary to the investigation, and ordered an in camera inspection to determine which portions of the records should be disclosed. Both sides have appealed by leave of the Appellate Division.

The Deputy Attorney-General in charge of the investigation argues that the physician-patient privilege does not apply to Medicaid fraud investigations and that the records should be produced without a showing of need. The petitioners, on their cross appeal, argue that the act of producing the records would constitute self-incrimination and therefore, the motion to quash should have been granted. In the alternative, they argue the modification was proper.

The petitioners are practicing psychiatrists with offices in the City of New York. Dr. X is a sole practitioner; Dr. Y has been practicing as a professional corporation since 1980. He is the sole shareholder, officer and employee of the corporation. Both doctors are Medicaid providers, who from 1981 to 1983 received considerable sums for services performed for Medicaid patients. They are also the subject of a Grand Jury investigation into allegations of Medicaid fraud, including a claim that each of them received Medicaid payments for services rendered to patients in New York while the doctors were actually out of the country.

On December 14, 1984 each of the petitioners was served with a subpoena, issued by the Deputy Attorney-General for Medicaid Fraud Control, requiring appearance before the Grand Jury and production of certain records covering a period from January 1, 1981 to December 31, 1983. Dr. X, the sole practitioner, was directed to produce "[s]uch records as [are] required by law to be kept, which reflect the evaluation and treatment * * * [and] which disclose fully the extent of care, services and supplies provided under the New York State Medicaid Program" to approximately 167 patients listed in an attached schedule. The subpoena served on Dr. Y ordered "[a]ny Officer, Director or Managing Agent" of the professional corporation to produce various corporate records, including "patient charts" for over 150 "Medicaid recipients listed in Schedule 'A' annexed hereto." There is no indication that any of the patients whose records were sought had executed waivers.

Each of the petitioners moved to quash the subpoenas principally on the grounds that requiring them to produce the records would violate their rights under the Fifth Amendment of the United States Constitution against self-incrimination and their patients' statutory physician-patient privilege.

The trial court denied the motions. The court held that the Fifth Amendment privilege could not be asserted with respect to corporate records or records required to be kept by law. Relying on our decision in Matter of Camperlengo v. Blum, 56 N.Y.2d 251, 451 N.Y.S.2d 697, 436 N.E.2d 1299, the court also concluded that the physician-patient privilege was abrogated when medical records are sought in an investigation of fraudulent Medicaid practices.

The Appellate Division modified. That court agreed that the Fifth Amendment provided no basis for quashing the subpoenas. However, also relying on our decision in Matter of Camperlengo, the court concluded that in a Medicaid investigation, the physician-patient privilege was abrogated only to the extent necessary to insure that Medicaid funds are being properly applied. The court concluded that this imposed "a requirement of particularized need before the production of medical records otherwise protected by the privilege may be required" (113 A.D.2d 49, 54, 495 N.Y.S.2d 365). The court remitted to have the trial court conduct an in camera inspection to determine which portions of the records should be made available to the Grand Jury.

On this appeal the Deputy Attorney-General urges that the physician-patient privilege is completely inapplicable to Medicaid investigations and that in such cases those conducting the investigation should have unrestricted access to medical records of Medicaid patients, without having to make any showing of need for the particular record. He claims that this is required by the Federal law relating to Medicaid, by our own prior decisions and by the public policy against delaying Grand Jury investigations. ^*

The statutory privilege protects confidential communications between patient and physician in order to protect the patient from "humiliation, embarrassment or disgrace" (Steinberg v. New York Life Ins. Co., 263 N.Y. 45, 48-49, 188 N.E. 152). The theory is that a person in need of medical attention should be encouraged to make full and candid disclosure of all matters necessary to treatment by being assured that what is disclosed to the doctor will not be revealed to others without the patient's consent (3 Commission on Revision of Statutes of N.Y., at 737 [1836] ). The privilege is personal to the patient but may be asserted by the physician in the absence of a waiver by the patient (Prink v. Rockefeller Center, 48 N.Y.2d 309, 314-315, 422 N.Y.S.2d 911, 398 N.E.2d 517).

A number of exceptions have been recognized, but there is no exception for Grand Jury proceedings or criminal investigations generally (Matter of Grand Jury Investigation, 59 N.Y.2d 130, 135-136, 463 N.Y.S.2d 758, 450 N.E.2d 678). A physician, medical facility and others may assert the privilege before a Grand Jury, unless the patient was a victim of the one asserting the privilege (Matter of Grand Jury Investigation, supra, at p. 135, 463 N.Y.S.2d 758, 450 N.E.2d 678). However in Matter of Camperlengo v. Blum (supra) we did recognize an exception for Medicaid investigations. In that case, involving a subpoena issued in connection with an administrative investigation by the Department of Social Services, we stated (56 N.Y.2d at pp. 255-256, 451 N.Y.S.2d 697, 436 N.E.2d 1299): "Although there is no express statutory exception to the privilege for Medicaid-related records, the Federal and State record-keeping and reporting requirements evidence a clear intention to abrogate the physician-patient privilege to the extent necessary to satisfy the important public interest in seeing that Medicaid funds are properly applied."

The Deputy Attorney-General contends that this decision and the subsequent holding in Matter of Doe v. Kuriansky, 91 A.D.2d 1068, 458 N.Y.S.2d 678, affd. 59 N.Y.2d 836, 464 N.Y.S.2d 755, 451 N.E.2d 502, applying the exception to Grand Jury proceedings initiated by the Medicaid Fraud Unit establish a right of unrestricted access to medical records of Medicaid recipients in the case now before us. In Matter of Camperlengo (supra), the petitioner broadly contended that the privilege could be asserted to deny the investigators access to all medical records, and in Matter of Doe (supra), the petitioner made a contention, nearly as broad, that all patients' names should be redacted from the medical records, and that all medical information should be deleted from certain nonmedical records. Although we rejected those contentions, we did not consider whether a more narrow assertion of the privilege, addressed to particularly sensitive matter apparently unnecessary to the investigation, would prove unavailing. Indeed in Matter of Camperlengo we noted that we had "no occasion to delineate the precise boundaries of the exception" because the petitioner there had abandoned any claim that the subpoena was overly broad (Matter of Camperlengo v. Blum, supra, 56 N.Y.2d at p. 256, n. *, 451 N.Y.S.2d 697, 436 N.E.2d 1299).

The Deputy Attorney-General contends that any rule denying Medicaid investigators unfettered access to medical records of Medicaid recipients is inconsistent with Federal law and would jeopardize this State's right to receive Medicaid funds. Concededly a State participating in the Medicaid program must comply with the Federal statutes which require Medicaid providers to maintain and furnish to appropriate authorities "such records as are necessary fully to disclose the extent of the services...