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New York Trial Court Says Physician-Patient Privilege Protects Only Communications, Not Mere Facts


HLD, v. 28, n. 10 (October 2000)

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 petition.

In re Sullivan, No. 500202/2000 (N.Y. Sup. Ct. June 13, 2000) (3 pages).

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