HLD, v. 28, n. 10
New York Trial
Court Says Physician-Patient Privilege Protects Only Communications,
Not Mere Facts
Ann Sullivan, M.D., the director of the psychiatry department
at Elmhurst Hospital Center ("Elmhurst"), sought an order directing that respondent,
a mental health patient, attend assisted outpatient treatment. Sullivan filed
a petition pursuant to N.Y. Mental Hyg. Law � 9.60 ("Kendra's Law"),
which requires petitioners to accompany a petition with "an affirmation or affidavit
of a physician who has personally examined the person who is the subject of
the petition stating . . . that the examining physician recommends assisted
outpatient treatment and is willing and able to testify at the hearing on the
petition." Sullivan included an affidavit from Dr. Shoundra Zeng, who was also
respondent's treating physician at Elmhurst. Respondent moved to dismiss the
petition, arguing that New York's physician-patient privilege, N.Y. C.P.L.R.
� 4504, "'absolutely prohibits a treating psychiatrist from submitting
an affidavit or giving testimony in support of'" a petition under Kendra's Law.
The Supreme Court of New York, Queens County, denied respondent's
motion, finding that � 4504 did not prevent Zeng from "disclosing
information about the patient under all circumstances" but, instead, "only prevent[ed]
a physician from disclosing information which is deemed confidential." The court
emphasized that the privilege protects only communications, not facts. In order
to obtain protection under � 4504, the court noted, a movant must
show (1) that a relationship with a licensed physician existed, (2) that the
physician had acquired the sought-after information while attending to the patient
professionally, and (3) that the physician had needed the information to treat
or prescribe for the patient. The court found that respondent had not met that
burden and that respondent's attorney had stated only that "'[t]he affirmation
of . . . ZENG is invalid and should not be considered by the court as it violates
the physician-patient privilege embodied in CPLR � 4504.'" Furthermore,
although noting that it was unclear whether respondent was also arguing that,
under � 9.60, an "'examining physician'" could not be the patient's treating
psychiatrist, the court stated that � 9.60 "only prevents a treating psychiatrist
from being the petitioner if the treating psychiatrist is the examining physician."
Because Sullivan, rather than Zeng, was the petitioner, the court found that
� 9.60 did not prevent Zeng from making a statement as the examining
physician. Accordingly, the court denied respondent's motion to dismiss the
In re Sullivan, No. 500202/2000 (N.Y. Sup. Ct.
June 13, 2000) (3 pages).