State ex rel. Hickox v. Hickox

• Decision Date: 14 November 1978
• Citation: 410 N.Y.S.2d 81,64 A.D.2d 412
• Parties: The STATE of New York ex rel. Charles HICKOX, on behalf of George Hickox, Petitioner-Appellant, v. Louise Fitzhugh HICKOX, Respondent-Respondent, Payne-Whitney Psychiatric Clinic of The New York Hospital-Cornell Medical Center, Movant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 81

410 N.Y.S.2d 81

64 A.D.2d 412

The STATE of New York ex rel. Charles HICKOX, on behalf of George Hickox, Petitioner-Appellant, v. Louise Fitzhugh HICKOX, Respondent-Respondent Payne-Whitney Psychiatric Clinic of The New York Hospital-Cornell Medical Center, Movant-Respondent.

Supreme Court, Appellate Division, First Department.

Nov. 14, 1978.

Raoul Lionel Felder, New York City (Norman M. Sheresky, New York City, with him on brief), for petitioner-appellant.

Peter E. Bronstein, New York City, of counsel (Bronstein, Van Veen & Bronstein, New York City), for respondent-respondent.

James J. Pinto, New York City, of counsel (Richard J. Concannon and Kevin G. McAnaney, New York City, with him on brief; Kelley Drye & Warren, New York City), for movant-respondent Payne-Whitney Psychiatric Clinic of The New York Hospital-Cornell Medical Center.

Before KUPFERMAN, J. P., and BIRNS, SILVERMAN, FEIN and SANDLER, JJ.

SILVERMAN, Justice.

In this child custody proceeding petitioner-father has served upon Payne-Whitney Psychiatric Clinic a subpoena Duces tecum requiring the production of any records relating to respondent-mother for the period from April 19, 1977 to April 29, 1977. The subpoena was returnable in court at a specified date and time, presumably at the hearing. Payne-Whitney moved to quash the subpoena, and in a supporting affidavit by her attorney, respondent-mother has joined in that application. Special Term granted the motion to quash. Petitioner-father appeals. We reverse and deny the motion to quash the subpoena, but direct that the use of the subpoenaed records shall be subject to the limitations hereinafter discussed.

The parties appear to have proceeded on the assumption that compliance with the subpoena would result in general disclosure of the records to petitioner-father. A subpoena Duces tecum for use at a trial or hearing, and the denial of a motion to quash such subpoena Duces tecum, are not the equivalent of an order of disclosure. The subpoena merely directs the subpoenaed party to have the documents in court so that the court may make appropriate direction with respect to the use of such documents. It is quite common for hospital records to be subpoenaed in our courts, where in New York County they are left with the Medical Reports Office of the court and are not available for inspection except on order of the court (or on agreement of the parties involved). Thus, in our view, the grant of the motion to quash the subpoena prematurely limited the power of the court on the facts as they may ultimately appear to make appropriate directions with respect to the use of the records.

Considering now the extent to which such records may be used and future disclosure thereof made, we note the following:

CPLR § 4504 provides in part:

"(a) Confidential information privileged. Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing or dentistry 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."

The Special Term justice in the present case, consistently with his prior ruling in Yaron v. Yaron, 83 Misc.2d 276, 372 N.Y.S.2d 518 (Sup.Ct., N.Y.Co.1975), has read the statute literally. As he said in the Yaron case:

"This court takes the position that any communication which is privileged when made remains privileged forever unless the privilege is waived by the client." (At 284, 372 N.Y.S.2d at 525)

On the other hand, in Baecher v. Baecher, 58 A.D.2d 821, 396 N.Y.S.2d 447 (1977), our brethren in the Second Department held that the privilege is waived by a respondent "actively contesting custody, thereby putting his mental and emotional well-being into issue." In Perry v. Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382 (1978), our brethren in the Fourth Department took the position that the privilege, even when not waived, is not absolute and apparently "that where it is demonstrated that invasion of protected communications between a party and a physician, psychologist or social worker is necessary and material to a determination of custody the rule of privilege protecting such communications must yield to the 'dominant . . . duty of the court to guard the welfare of its wards'." (At 519, 403 N.Y.S.2d at 386). In Matter of Schulman v. New York City Health & Hospitals Corporation, 44 A.D.2d 482, 484, 355 N.Y.S.2d 781, 783 (1st Dept. 1974), this Court referring to the physician-patient privilege said that " 'despite the sacrosanct nature of the statutory prohibition', it may be waived or suspended for certain purposes, even if not for all purposes." (The Special Term justice read the affirmance by the Court of...