Henry v. Lewis

• Decision Date: 28 June 1984
• Parties: Franklyn HENRY, M.D., Petitioner-Appellant, v. Albert B. LEWIS, Superintendent of Insurance of the State of New York, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 263

478 N.Y.S.2d 263

102 A.D.2d 430

Franklyn HENRY, M.D., Petitioner-Appellant, v. Albert B. LEWIS, Superintendent of Insurance of the State of New York, Respondent-Respondent.

Supreme Court, Appellate Division,

First Department.

June 28, 1984.

Seth P. Stein, Garden City, of counsel (Seligman, Stein & Abramowitz, Garden City, attorneys), for petitioner-appellant.

Robert S. Hammer, Asst. Atty. Gen., of counsel (Melvyn R. Leventhal and Richard G. Liskov, Asst. Attys. Gen., with him on the brief; Robert Abrams, Atty. Gen., attorney), for respondent-respondent.

Before SANDLER, J.P., and SULLIVAN, ROSS and KASSAL, JJ.

SULLIVAN, Justice.

Petitioner, a psychiatrist, was served with a subpoena to appear before respondent, the Superintendent of Insurance of the State of New York, to give evidence in an official investigation "into the affairs, conduct and practices of Travelers Insurance Company", and to produce the medical records of 15 named individuals, as well as certain specified office records of his with respect to those individuals for the period from January 1, 1978 to April 30, 1982. The other records sought consisted of five categories: petitioner's appointment books or diaries; his records of billings to Travelers; his records of receipts from Travelers; his records of billings to the named individuals; and his records of receipts from these individuals.

After unsuccessfully seeking withdrawal of the subpoena petitioner moved to quash on the ground that the records sought contained information necessarily acquired in attending a patient in a professional capacity, the disclosure of which, even the acknowledgement that an individual was a patient, would violate the physician-patient privilege contained in CPLR 4504(a) ¹. The Superintendent cross-moved to compel compliance.

In support of his position the Superintendent submitted the affidavit of an investigator for the Insurance Department's Frauds Bureau, who stated that an investigation had been commenced pursuant to Insurance Law § 38-c concerning reports of the filing of suspicious claims by 15 Pan Am employees under a Travelers' group health policy for reimbursement of expenses for professional services allegedly rendered by petitioner. In verifying the claims, however, it turned out that the employees, all members of flight crews, were flying at the times and dates specified. Moreover, the employees, after preliminary inquiries, denied having any telephone consultations with petitioner on the dates in question. Concluding that false claims may have been filed in violation of Penal Law § 176.05 and Insurance Law § 38-b, the investigator served the subpoena in question. As to the claim of privilege, the investigator cited the standard provision in the group insurance claim form authorizing the release of any medical information which is necessary to a determination of the employee's benefit entitlement. The investigator also pointed out that if the services claimed were, in fact, never rendered, petitioner could not have any information as regards these employees to which the physician-patient privilege would attach.

In opposing the Superintendent's cross-motion petitioner argued that, absent express language to that effect, the purported medical release contained in the insurance claim form did not run to the benefit of the Superintendent. Petitioner also, for the first time, invoked his constitutional privilege against self-incrimination, both as to his appearance to give testimony and as to the records sought.

Special Term denied the motion and directed compliance with the subpoena, finding, inter alia, that the employees whose records were sought had, "pursuant to standard release language contained in a group insurance claim form", authorized disclosure of their medical records. Citing People v. Doe (59 N.Y.2d 655, 463 N.Y.S.2d 405, 250 N.E.2d 211), it also rejected petitioner's assertion of the privilege against self-incrimination. Petitioner appealed. The parties thereafter stipulated, pending determination of the appeal, to the adjournment, sine die, of the return date of the subpoena. Since we find that all of the records sought are protected by one or the other of the privileges asserted we modify to quash the subpoena to the extent that it calls for the production of these records, except for the dates of treatment contained in the employees' medical records.

Not all of the records sought fall within the physician-patient privilege codified in CPLR 4504. Only the information which a physician obtains in his professional capacity and which is needed to diagnose and treat a condition is so protected. (People v. Decina, 2 N.Y.2d 133, 141-143, 157 N.Y.S.2d 558, 138 N.E.2d 799.) A physician is free to testify as to the fact that he has treated a patient and the occasions of his treatment. (Klein v. Prudential Ins. Co. of America, 221 N.Y. 449, 453, 117 N.E. 942; Patten v. United L. & Acc. Ins. Assn., 133 N.Y. 450, 453, 31 N.E. 342; In re Albert Lindley Lee Mem. Hosp., 115 F.Supp. 643, 645-646, aff'd 209 F.2d 122, cert. den., sub nom Cincotta v. U.S., 347 U.S. 960, 74 S.Ct. 709, 98 L.Ed. 1104.) Thus, if petitioner's billing and receipt records and his appointment books or diaries are to find protection from the Superintendent's subpoena it must come from petitioner's assertion of the privilege against self-incrimination.

The privilege against self-incrimination "applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual's private life." (Bellis v. United States, 417 U.S. 85, 87-88, 94 S.Ct. 2179, 2182, 40 L.Ed.2d 678.) In People v. Doe, supra (59 N.Y.2d 655, 463 N.Y.S.2d 405, 450 N.E.2d 211), however, the Court of Appeals held that the privilege against self-incrimination may not be asserted with respect to records which, by law, are required to be kept. (See, also, Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787.) Since physicians are required under the regulations of the Board of Regents to maintain "a record for each patient which accurately reflects the evaluation and treatment of the patient" (8 NYCRR 29.2), the privilege against self-incrimination may not be invoked as to a patient's medical records.

Neither the Superintendent nor Special Term cites any statutory authority or regulation requiring a physician to maintain billing and receipt records and appointment books or diaries. Doe thus abrogates the privilege against self-incrimination only as to the medical records requested since the other records sought are not required to be kept under law.

The United States Supreme Court has recently decided, however, that because of the absence of compulsion, the contents of voluntarily maintained business records are not privileged under the Fifth Amendment. ( U.S. v. John Doe, --- U.S. ----, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984).) In the same decision the court held that the act of producing such documents may nevertheless be privileged, since a government subpoena compels the holder of a document "to perform an act that may have an incriminating effect." (Id. at 1242.) Citing Fisher v. U.S. (425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39) the court left open the possibility that in certain circumstances the act of production might only have "minimal testimonial value", and thus "not operate to incriminate the taxpayer." (Id. at 1242.) In Fisher the court had stated:

Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225 (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both "testimonial" and "incriminating" for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof. (Id., 425 U.S. at 410, 96 S.Ct. at 1581.)

Thus, the contents of none of the records sought, whether maintained voluntarily, as in the case of the five categories of office records, or involuntarily, as in the case of patients' medical records, are entitled to Fifth Amendment protection.

Nevertheless, since the act of producing his billing and receipt records and appointment books or diaries has communicative aspects which, no doubt, would be incriminatory, petitioner is entitled to assert his Fifth Amendment privilege as to these records. The act of production would, for instance, compel petitioner to admit tacitly that the records exist, that they are in his possession and that they accurately reflect whatever is contained therein. Thus, production of these documents would have more than minimal testimonial value. Furthermore, since apparently the Superintendent's own investigation to date has led him to conclude that fraud has been committed, any production of petitioner's records which establishes that some of his patients were purportedly treated at a time they were on a flight, or that they were never treated at all, would likely incriminate him. Thus, the subpoena must be quashed as to the five categories of office records, consisting of petitioner's appointment books or diaries and his billing and receipt records as to both Travelers and the named employees, which are not required by law to be kept or disclosed to a public agency.

The sixth category of records sought, the employees' medical records, are, as already noted, and as conceded by petitioner, not privileged under the Fifth Amendment since they are required to be maintained. (See Shapiro v. United States, supra, 335 U.S. at 33, 68 S.Ct. at 1392; People v. Doe, supra, 59...