State v. Roper

• Decision Date: 19 June 1996
• Docket Number: No. 16027,16027
• Citation: 1996 NMCA 73,122 N.M. 126,921 P.2d 322
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. William ROPER, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 322

921 P.2d 322

122 N.M. 126

STATE of New Mexico, Plaintiff-Appellant, v. William ROPER, Defendant-Appellee.

No. 16027.

Court of Appeals of New Mexico.

June 19, 1996.

[122 N.M. 127] Tom Udall, Attorney General, Max Shepherd, Asst. Attorney General, Santa Fe, for Appellant.

T. Glenn Ellington, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for Appellee.

OPINION

APODACA, Chief Judge.

¶1 The State appeals the trial court's order suppressing the results of Defendant's blood test. We determine that the results of Defendant's blood test were protected by the physician-patient privilege, SCRA 1986, 11-504 (Repl.1994). We therefore affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Defendant and a passenger were involved in a vehicular accident. Defendant lost control of his motorcycle when he hit either a pothole or a patch of gravel. Both he and the passenger sustained injuries requiring medical attention. A police officer questioned Defendant at the hospital. The officer testified not only that he smelled alcohol on Defendant's breath and that Defendant had bloodshot, watery eyes, but also that Defendant admitted he had consumed two beers and had been speeding at the time of the accident. At some point, either before or after (or both before and after) the officer arrested Defendant, the officer asked Defendant if he would take a blood-alcohol test. ¹ Defendant refused.

¶3 After Defendant had been treated for his injuries, the officer asked one of the nurses in the emergency room about the blood-alcohol content of the blood test taken by the hospital in the course of diagnosing and treating Defendant. The nurse stated that the tests showed Defendant's blood-alcohol content to be .104. The State later subpoenaed the medical records. Defendant was eventually charged with operating a vehicle while under the influence of alcohol pursuant to NMSA 1978, Section 66-8-102 (Repl.Pamp.1994), and with causing great bodily injury while driving under the influence of alcohol pursuant to NMSA 1978, Section 66-8-101(B), (C) (Repl.Pamp.1994), among other infractions. After arguments before the trial court on Defendant's motion to quash the grand jury indictment and motion to suppress the results of the hospital's blood test, the trial court concluded that although the officer had probable cause to arrest Defendant, the results of the test constituted a privileged confidential communication between a physician and a patient under SCRA 11-504. The trial court thus suppressed the test results.

II. DISCUSSION

¶4 The material facts are not at issue, and the only dispute arises from the application of SCRA 11-504 and the law to the facts. We therefore review de novo. See State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994).

¶5 SCRA 11-504(B) states:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his physical, mental or emotional condition, including drug addiction, among himself, his physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

¶6 Common law did not recognize the physician-patient privilege. Trujillo v. Puro, 101 N.M. 408, 412, 683 P.2d 963, 967 (Ct.App.), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984). Consequently, the privilege is in derogation of the common law and must be construed strictly against the asserting party. State v. Boysaw, 40 Ohio App.3d 173, 532 N.E.2d 154, 156 (1987). The purpose of the privilege is to encourage a patient to make complete disclosures of his symptoms and conditions to a physician without fear of publication. Id.; see also 3 Spencer A. Gard, Jones on Evidence § 21:24 (6th ed. 1972). " '[T]he value placed on privacy, manifested both by general concerns for privacy and by the specific concerns for an individual's bodily integrity found in constitutional, statutory, and common law doctrines, suggests a strong policy basis' for the privilege." Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707, 712, 536 N.E.2d 1126, 1131 (1989) (quoting Developments in the Law, Medical and Counseling Privileges, 98 Harv.L.Rev. 1530, 1548 (1985)). SCRA 11-504 does not contain any language limiting its application to civil cases. We therefore hold that the privilege applies to all cases, both civil and criminal. See 8 John Henry Wigmore, Evidence § 2385 (McNaughton rev. 1961) (privilege generally applies to both criminal and civil cases unless rule expressly limits privilege to the latter).

¶7 For the privilege to apply, the patient must have consulted the physician for treatment or diagnosis looking toward treatment. SCRA 11-504(B). Here, there is no question that Defendant consulted a physician to treat his injuries sustained in the motorcycle accident. There is likewise no dispute that Defendant was a patient. Cf. State, In the Interest of M.P.C., 165 N.J.Super. 131, 397 A.2d 1092 (App.Div.1979) (when defendant submitted to a blood test at request of police officer, sole purpose of test was not for treatment or diagnosis and thus defendant was not a patient so as to qualify under the privilege). The only issue in contention is whether the results of the blood test constituted a confidential communication. In addressing whether the results of Defendant's blood test constituted a privileged confidential communication under SCRA 11-504, we will discuss our analysis in three steps: (1) whether the blood test constituted a communication, (2) if so, whether the communication was confidential, and (3) if so, whether the exception under SCRA 11-504(D)(3) negated the privilege.

A. Did The Blood Test Constitute A Communication Under SCRA 11-504?

¶8 "Communication" is not defined in SCRA 11-504, and the precise issue of whether the results of a blood test constitute a confidential communication has never been addressed in New Mexico. However, in In re Doe, 98 N.M. 442, 649 P.2d 510 (Ct.App.1982), in which communication between patients and psychotherapists was explored, communication under SCRA 11-504 was defined as including "information or knowledge gained by observation and personal examination of the patient." Id. at 446, 649 P.2d at 514. The rule was amended in 1990 to include physicians. We see no reason why information or knowledge gained by observation and examination of the patient for treatment or diagnosis by a psychotherapist should be treated any differently from that gained by a physician, especially when treatment by a physician often includes psychological undertones. See Medical and Counseling Privileges, supra, at 1548-51. Therefore, because a blood test given in a personal examination by a physician would provide information to that physician, it follows that the results of the test would constitute a communication under the Doe definition. See State v. Smorgala, 50 Ohio St.3d 222, 553 N.E.2d 672, 674 n. 1 (1990) (blood test results constituted communication); State v. Elwell, 132 N.H. 599, 567 A.2d 1002, 1006 (1989) (same); Dillenbeck, 539 N.Y.S.2d at 711-12, 536 N.E.2d at 1130 n. 4 (same); State v. Pitchford, 10 Kan.App.2d 293, 697 P.2d 896, 899 (1985) (same); State v. Dress, 10 Ohio App.3d 258, 461 N.E.2d 1312, 1316 (1982) (same). But see Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83, 84-85 (1989) (blood test results not confidential communication).

¶9 The State argues that State v. Teel, 103 N.M. 684, 712 P.2d 792 (Ct.App.1985), offers a more accurate definition of communication. Teel defined communication as "utterances or expressive acts." Id. at 686, 712 P.2d at 794. That definition, however, applied to a different rule, SCRA 1986, 11-505 (Repl.1994) (husband-wife privileges), and in a non-professional context. It did not apply to the definition of communication for the psychotherapist-patient privilege offered in Doe.

B. Was The Communication Confidential And Therefore Privileged?

¶10 SCRA 11-504(A)(4) defines a confidential communication:

A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient's family.

¶11 Doe held that, to be confidential pursuant to this provision, two conditions must be met: (1) the patient must intend the communication to be undisclosed, and (2) non-disclosure would further the interest of the patient. ² Id. at 446, 649 P.2d at 514.

¶12 Regarding the first prong, the rule implies that the intent must be expressed to medical personnel involved in the diagnosis or treatment of the patient. Although the rule does not indicate how intent is to be demonstrated by the patient, intent was described in In re Sherry C. & John M., 113 N.M. 201, 207, 824 P.2d 341, 347 (Ct.App.1991), as being manifested by "words or conduct." ³ Here, we believe that Defendant's consent to undergo treatment or diagnosis constituted sufficient conduct to manifest an intent of confidentiality. When a patient sees a physician for either (or both) of those purposes, it should be implicit that the information conveyed in the private consultation and examination is exclusively for the patient's eyes and ears, absent the patient's consent. See Medical and Counseling Privileges, supra, at 1546 (patient expects communications made to physician to be confidential). Thus, when a patient is privately evaluated by a physician, the conduct of the patient agreeing to the evaluation in itself manifests an intent that any communications made for the purpose of diagnosis or treatment remain confidential. See SCRA 11-504(...