physician-patient privilege in New York

2024"This waiver is called for as a matter of basic fairness: [A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party" claim."' (Arons v. Jutkowitz, 9 NY3d 393, 409 [2007], quoting Dillenbeck, 73 NY2d 278 , supra) However, it is equally well-settled that "[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a p

2023A plaintiff who commences a medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she affirmatively places at issue in the lawsuit ( see Dillenbeck v Hess , 73 NY2d 278, 287 ; Koump v Smith , 25 NY2d 287, 294 ; Rothstein v Huh , 60 AD3d 839, 839 ).

2022Where the physician-patient privilege has not been waived, the party asserting the privilege may "avoid revealing the substance of confidential communications made to [his or] her physician, but may not refuse to testify as to relevant medical incidents or facts concerning [himself or] herself" ( Williams v Roosevelt Hosp. , 66 NY2d 391, 393 [1985]; see Schaner v Mercy Hosp. of Buffalo , 15 AD3d 997, 999 [4th Dept 2005]).

2019The physician-patient privilege seeks to protect confidential communications relating to the nature of the treatment rendered and the diagnosis made ( see Williams v Roosevelt Hosp. , 66 NY2d 391, 396 ; Hughson v St.

2023A plaintiff who commences a medical malpractice action waives the physician-patient privilege with respect to those physical or mental conditions which he or she affirmatively places at issue in the lawsuit ( see Dillenbeck v Hess , 73 NY2d 278, 287 ; Koump v Smith , 25 NY2d 287, 294 ; Rothstein v Huh , 60 AD3d 839, 839 ).

2013In Holzle , this court concluded that a plaintiffs privacy rights under HIPAA should be deemed waived just as the Court of Appeals deemed the physician-patient privilege waived in Koump v Smith ( 25 NY2d 287, 294 [1969]).

2021Moreover, while the Court of Appeals has stated that the physician-patient privilege is to be given a "broad and liberal construction to carry out its policy" ( Matter of Grand Jury Investigation of Onondaga County , 59 NY2d 130, 134 [internal quotation marks omitted]; see Matter of Grand Jury Investigation in N.Y.

2015We have acknowledged that although the physician-patient privilege is in derogation of the common law, it should be af *263 forded a “broad and liberal construction to carry out its policy” of encouraging full disclosure by patients so that they may secure treatment (Matter of Grand Jury Investigation of Onondaga County, 59 NY2d at 134 [citation and internal quotation marks omitted]).

2025The People assert that the physician's testimony is covered by Public Health Law § 2101 (1), which requires physicians to "immediately give notice of every case of communicable disease required by the [Department of Health] to be reported to it, to the health officer of the local health district where such disease occurs." [FN2] Significantly, however, "the physician-patient privilege is to be given a broad and liberal construction to carry out its policy," while "statutes limiting the privilege" have been "narrowly construed" ( People v Sinski , 88 NY2d 487, 492 [1996] [internal quotation mar

2025The People assert that the physician's testimony is covered by Public Health Law § 2101 (1), which requires physicians to "immediately give notice of every case of communicable disease required by the [Department of Health] to be reported to it, to the health officer of the local health district where such disease occurs." [FN2] Significantly, however, "the physician-patient privilege is to be given a broad and liberal construction to carry out its policy," while "statutes limiting the privilege" have been "narrowly construed" ( People v Sinski , 88 NY2d 487, 492 [1996] [internal quotation mar

2008County, 98 NY2d 525, 529 [2002]; Dillenbeck v Hess, 73 NY2d 278, 284 [1989].) The physician-patient privilege is currently codified in CPLR 4504 (a).

2005Although in derogation of the common law, the physician-patient privilege is to be given a "broad and liberal construction to carry out its policy" (In re Grand Jury Investigation in New York County , 98 NY2d 525 ; Matter of Grand Jury Investigation of Onondaga County , 59 NY2d 130, 134 ; Matter of City Council of City of NY v. Goldwater , 284 NY 296, 300 ).

2025"A plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that [their] physical or mental condition is affirmatively placed in controversy" ( Carter v Fantauzzo , 256 AD2d 1189, 1190 [4th Dept 1998]).

2025"A plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that [their] physical or mental condition is affirmatively placed in controversy" ( Carter v Fantauzzo , 256 AD2d 1189, 1190 [4th Dept 1998]).

2015Corp. v New York State Commn. of Correction, 19 NY3d 239 [2012] [finding an implied exception to the physician-patient privilege from the legislature’s express provisions that granted a commission the power to investigate inmate deaths]; Matter of Camperlengo v Blum, 56 NY2d 251 [1982] [finding an implied exception to the physician-patient privilege where the State Department of Social Services sought medical records as part of a Medicaid fraud investigation]; People v Fuller, 24 NY2d 292 [1969] [finding an implied exception to the physician-patient privilege under the Narcotics Control Act of

2007The petitioners “will not be permitted to avail [themselves] of the physician-patient privilege, which was created for a noble reason, as a cloak to thwart a legitimate inquiry” (Matter of Camperlengo v Blum, 83 AD2d 661, 662 [1981], affd 56 NY2d 251 [1982]).

2014In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” (People v Decina, 2 NY2d 133, 145 [1956]; see State of New York v General Elec.

2014In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” (People v Decina, 2 NY2d 133, 145 [1956]; see State of New York v General Elec.

1985Francis Hosp. ( 93 AD2d 491 ), a case on all fours with the instant one, Special Term was nevertheless constrained by Hughson to deny the motion on the ground that the information sought was protected by the physician-patient privilege.

1984Francis Hosp. ( 93 AD2d 491 ), concerning the situation in which the mother of an infant plaintiff, whose birth defects allegedly resulted from negligent delivery and postnatal care, will be required to provide the defendants in a medical malpractice action with records relating to her own medical history, including prior pregnancies, and the medical histories of the plaintiff’s older siblings, notwithstanding a claim that this information is exempt from disclosure pursuant to the physician-patient privilege (CPLR 4504, subd [a]).

2016The physician-patient privilege, together with its concomitant duty of confidentiality, belongs to the patient and is not terminated by death alone (see Prink v Rockefeller Ctr., 48 NY2d 309, 314 [1979]).

2008The donor’s medical records were covered by the physician-patient privilege (see CPLR 4504 [a]), even after her death (see CPLR 4504 [c]; Prink v Rockefeller Ctr., 48 NY2d 309, 314 [1979]; cf. Mayorga v Tate, 302 AD2d 11, 11-12, 17-18 [2002]), and we reject NYTJ’s contention that the donor must be deemed to have waived the privilege with respect to subsequent litigation merely by offering to donate an organ pursuant to Public Health Law article 43 (cf. Green v Montgomery, 95 NY2d 693, 699 [2001]).

2008The relevant text of the statute states, “Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic 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.” Although in derogation of the common law, the physician-patient privilege is to be given a “broad and liberal construction to carry out its policy.” (Matter of Grand Jury Investigation of Onondaga

2005Although in derogation of the common law, the physician-patient privilege is to be given a "broad and liberal construction to carry out its policy" (In re Grand Jury Investigation in New York County , 98 NY2d 525 ; Matter of Grand Jury Investigation of Onondaga County , 59 NY2d 130, 134 ; Matter of City Council of City of NY v. Goldwater , 284 NY 296, 300 ).

2016In regards to the speaking authorizations, counsel submits that they are consistent with Arons v Jutkowitz, but that defendants would be amenable “to including alternate language on the authorizations, which more specifically outlines the details of the lawsuit.” (Gregorio affirmation, Apr. 18, 2016, ¶ 12.) It is well settled law in the Fourth Department that “although a plaintiff who commences a personal injury action has waived the physician-patient privilege to the extent that his [or her] physical or mental condition is affirmatively placed in controversy . . . , the waiver ... of that pri

2014It is also well settled that, “ ‘[i]n bringing the action, plaintiff waive[s] the physician[-]patient privilege only with respect to the physical and mental conditions affirmatively placed in controversy’ ” (Tirado v Koritz, 77 AD3d 1368, 1369 [2010]). “ ‘The waiver of the physician-patient privilege made by a party who affirmatively asserts a physical condition in its pleading does not permit discovery of information involving unrelated illnesses and treatments’ ” (id. [internal quotation marks omitted]; see Donald v Ahern, 96 AD3d 1608, 1610 [2012]).

2024"This waiver is called for as a matter of basic fairness: [A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party" claim."' (Arons v. Jutkowitz, 9 NY3d 393, 409 [2007], quoting Dillenbeck, 73 NY2d 278 , supra) However, it is equally well-settled that "[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a p

2024The motion court providently exercised its discretion in ordering plaintiff to provide outstanding discovery — namely, a bill of particulars, authorizations, and medical records — as the physician-patient privilege does not shield plaintiff's records when he has affirmatively placed his physical or mental condition in issue ( see Arons v Jutkowitz , 9 NY3d 393, 409 [2007]).

2020Even if there was a violation of the physician-patient privilege, because of the independent evidence supporting the defendant’s conviction, violation of the privilege did not affect the outcome of the proceeding (see id. at 280-281 ).

2010The physician-patient privilege is based on statute, not the State or Federal Constitution . . . [and] a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads” (People v Greene, 9 NY3d 277, 280 [2007]; see People v Drayton, 56 AD3d 1278 , 1278-1279 [2008], appeal dismissed 13 NY3d 902 [2009]).

2007The AG concedes that there is no exception to the physician-patient privilege for the grand jury, nor for criminal investigations generally, but urges that because the invocation of evidentiary privileges in the grand jury “exact a heavy toll. . . because they keep otherwise competent evidence from the reach of the grand jury and the courts” citing 8 Wigmore, Evidence § 2380a (Chadbourn rev 1974) and Matter of Grand Jury Proceedings (Doe) ( 56 NY2d 348, 352 [1982]), the privilege should not apply where it will not serve to further the legitimate purposes for which it was created.

2005First, the physician-patient privilege seeks to maximize unfettered patient communication with medical professionals, so that any potential embarrassment arising from public disclosure will not ‘deter people from seeking medical help and securing adequate diagnosis and treatment’ (Dillenbeck at 285 , quoting Williams v Roosevelt Hosp., 66 NY2d 391, 395 [1985]; see also Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, 352 [1982]).

2019Here, the nonparty witness expressly declined to waive the physician-patient privilege as to her medical records, and her deposition testimony with respect to the facts of Wishner's alleged improper conduct during the subject physical examination and the facts and incidents of her medical history does not constitute privileged information ( see id. at 396 ; Roman v Turner Colours , 255 AD2d 571 , 572).

2019Thus, the nonparty witness did not waive the physician-patient privilege as to her medical records ( see Roman v Turner Colours , 255 AD2d at 572, Bolos v Staten Is.

1998Contrary to the plaintiffs’ contention, the Supreme Court properly determined that the physician-patient privilege was waived by the responses of the plaintiffs and nonparty witness, the decedent’s mother, made at an examination before trial, relating to the family medical history (see, Herbst v Bruhn, 106 AD2d 546 ), and by their disclosure of the family’s medical history to various physicians in the treatment of the decedent after his birth (see, Yetman v St.

1994Where prenatal injury is involved, the physician-patient privilege is waived with respect to the period the child is in utero (Herbst v Bruhn, 106 AD2d 546, 548 ; Scharlack v Richmond Mem.

2024Seeking the location where prescription medications were filled as of April 12, 2022 is also not subject to the physician-patient privilege and is proper. ( Neferis v DeStefano , 265 AD2d 464 [2d Dept 1999]) Whether any of this could lead to evidence that is admissible is not yet before the Court.

2019We agree with plaintiffs, however, that decedent's pharmacy records are not protected by the physician-patient privilege ( see CPLR 4504 [a]; Neferis v DeStefano , 265 AD2d 464, 466 [2d Dept 1999]) and are "material and necessary" to the prosecution of the action (CPLR 3101 [a]; see Allen v Crowell-Collier Publ.

2012Hosp., 102 AD2d 886, 888 [1984]), she did not waive the physician-patient privilege with respect to her own medical history by virtue of the allegations asserted in the complaint or the bills of particulars (see Lamy v Pierre, 31 AD3d at 614 ; Roman v Turner Colours, 255 AD2d 571 , 571 [1998]; Murphy v LoPresti, 232 AD2d 461, 462 [1996]; Bolos v Staten Is.

2012Hosp., 102 AD2d 886, 888 [1984]), she did not waive the physician-patient privilege with respect to her own medical history by virtue of the allegations asserted in the complaint or the bills of particulars (see Lamy v Pierre, 31 AD3d at 614 ; Roman v Turner Colours, 255 AD2d 571 , 571 [1998]; Murphy v LoPresti, 232 AD2d 461, 462 [1996]; Bolos v Staten Is.

2025Likewise, the disputed portions of the clergy file were not subject to redaction pursuant to CPLR 4504, the physician-patient privilege, and CPLR 4507, the client-psychologist privilege ( see S.E. v Diocese of Brooklyn , 240 AD3d at 743-744; Matter of Farrow v Allen , 194 AD2d 40, 44).

2025Contrary to the contentions of the Diocese and Sexton, certain portions of the clergy file were not subject to redaction pursuant to CPLR 4504, the physician-patient privilege, and CPLR 4507, the client-psychologist privilege ( see Matter of Farrow v Allen , 194 AD2d 40, 44 ).

2024Facts regarding the name of the patient from whom blood was drawn, as well as the date on which it was drawn and the name of the hospital employee who drew the blood are not pertinent to the diagnosis and treatment of the defendant and are not protected by CPLR § 4504. (see also People v Elysee , 49 AD3d 33 [2nd Dept 2007] [" . . . questions such as those designed to elicit information as to whether the patient has been previously treated at a hospital or by a doctor are not protected by the physician-patient privilege." Id. at 38 .

2024Facts regarding the name of the patient from whom blood was drawn, as well as the date on which it was drawn and the name of the hospital employee who drew the blood are not pertinent to the diagnosis and treatment of the defendant and are not protected by CPLR § 4504. (see also People v Elysee , 49 AD3d 33 [2nd Dept 2007] [" . . . questions such as those designed to elicit information as to whether the patient has been previously treated at a hospital or by a doctor are not protected by the physician-patient privilege." Id. at 38 .

1999Thus, the defendant’s physician-patient privilege (see, CPLR 4504; People v Al-Kanani, 33 NY2d 260 , cert denied 417 US 916 , supra) and his privilege against self-incrimination (see, People v Segal, 54 NY2d 58 ) clearly remain intact.

1997It is settled law that when a criminal defendant interposes the affirmative defense of lack of criminal responsibility by reason of mental disease or defect (CPL 60.55 [2]) or, in fact, in any case “when a patient puts in issue the condition for which he was examined by a physician” (People v Wilkins, 65 NY2d 172 , 176), he or she waives the physician-patient privilege with respect to the facts upon which the physician’s opinion is based (id..; see, People v Al-Kanani, 33 NY2d 260, 264 , cert denied 417 US 916 ; Matter of Lee v County Ct., 27 NY2d 432, 441-442 , cert denied 404 US 823 ; People

2019In addition, contrary to the plaintiffs' contention, the defendant did not waive the physician-patient privilege by serving an expert disclosure on the issue of Peterson's comparative negligence in the manner in which he crossed the traffic lane ( see Dillenbeck v Hess , 73 NY2d at 289 ; Navedo v Nichols , 233 AD2d 378, 379 ; Williams v McGinty , 205 AD2d 617, 619 ).

2011Furthermore, the plaintiff validly asserted the physician-patient privilege since he did not affirmatively place his physical or mental condition in issue in this action (see Koump v Smith, 25 NY2d at 297 ; McConnell v Santana, 30 AD3d at 482 ; Lombardi v Hall, 5 AD3d at 740 ; Navedo v Nichols, 233 AD2d at 379 ).

2014The evidence of guilt is overwhelming, and there is no significant probability that the absence of the error would have led to an acquittal (see People v Ballard, 173 AD2d 480, 480 [1991], lv denied 78 NY2d 961 [1991]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

1995The violation of defendant’s physician-patient privilege is subject to the nonconstitutional harmless error analysis (see, People v Ballard, 173 AD2d 480 , lv denied 78 NY2d 961 ), which requires us to determine whether "there is a significant probability, rather than only a rational possibility * * * that the jury would have acquitted the defendant had it not been for the error” (People v Crimmins, 36 NY2d 230, 242 ).

2007The AG notes that the ruling in Matter of Doe was restated in Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984 ( 69 NY2d at 241 ), when the Court of Appeals declared that “[i]t is only in the rare instance where the record sought contains highly sensitive matter having no apparent relevance to the Medicaid investigation, that a claim of privilege need be considered.” Finally, the AG urges that even if this court finds that the physician-patient privilege applies to the contested records in the case at bar, and even if this court declines to create an exception to the privilege in

2007The AG notes that the ruling in Matter of Doe was restated in Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984 ( 69 NY2d at 241 ), when the Court of Appeals declared that “[i]t is only in the rare instance where the record sought contains highly sensitive matter having no apparent relevance to the Medicaid investigation, that a claim of privilege need be considered.” Finally, the AG urges that even if this court finds that the physician-patient privilege applies to the contested records in the case at bar, and even if this court declines to create an exception to the privilege in

2024"This waiver is called for as a matter of basic fairness: [A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party" claim."' (Arons v. Jutkowitz, 9 NY3d 393, 409 [2007], quoting Dillenbeck, 73 NY2d 278 , supra) However, it is equally well-settled that "[t]he waiver of the physician-patient privilege made by a party who affirmatively asserts a p

2006(See, Iseman v Delmar Med.-Dental Bldg., 113 AD2d 276, 279 [3d Dept 1985] [waiver occurs when a “party voluntarily and affirmatively inserts the issue of a physical or mental defect or condition into the litigation in trial testimony, pretrial testimony or written matter”].) Finally, on this scant record, there is no occasion to address whether Dr. Beraka waived the physician-patient privilege and to what extent by allegedly informing his office staff of his medical condition and any treatment he may have received.