People v. Doe
| Decision Date | 29 October 1982 |
| Citation | 455 N.Y.S.2d 866,90 A.D.2d 669 |
| Parties | PEOPLE of the State of New York, Appellant, v. John DOE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Donald O. Chesworth by Wendy Lehmann, Rochester, for appellant.
Robert J. Hirsch, P.C. by Charles Steinberg, Rochester, for respondent.
Before DILLON, P.J., and SIMONS, DOERR, MOULE and SCHNEPP, JJ.
The District Attorney of Monroe County issued subpoenas duces tecum to two individual doctors requiring them to appear before a Grand Jury and to produce certain medical records pertaining to their treatment of several named patients. The records were sought in connection with an investigation of possible fraud in the submission of Blue Shield claims by the doctors. The doctors moved to quash the subpoenas on the basis of their Fifth Amendment privilege against self-incrimination. Special Term quashed the subpoenas.
The privilege against self-incrimination inures to both oral testimony and the production of an individual's personal papers and records (Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746). The papers and effects which the privilege protects, however, must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity (Bellis v. United States, supra, at 89-90, 94 S.Ct. at 2183-2184).
These medical records are required to be maintained by regulation of the Board of Regents (8 NYCRR 29.2). Disclosure to the patient and other physicians is required under certain circumstances by both this regulation and section 17 of the Public Health Law. Accordingly, these records are not the private property of the doctors or held by them in a purely personal capacity. Additionally, these records are sufficiently analogous to the nursing home records in cases such as Matter of Sigety v. Hynes, 38 N.Y.2d 260, 379 N.Y.S.2d 724, 342 N.E.2d 518, cert. den. 425 U.S. 974, 96 S.Ct. 2174, 48 L.Ed.2d 798 and Matter of Barlow v. Hynes, 56 A.D.2d 700, 391 N.Y.S.2d 759, and the school records in Matter of Cappetta, 42 N.Y.2d 1066, 399 N.Y.S.2d 638, 369 N.E.2d 1172 to fall within the "required records" exception to the privilege. If, however, the doctors are required to testify beyond the mere identification of the records, immunity will attach (CPL 190.40, subd. 2, par. ).
Order unanimously reversed and motion denied.
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People v. Doe
...Rochester, of counsel), for respondent. OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, 90 A.D.2d 669, 455 N.Y.S.2d 866, with The Fifth Amendment privilege which exists as to private papers cannot be asserted with respect to records which are require......
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