Opinion
December 1, 1958
Smith Reiher ( Robert Callahan of counsel), for petitioner.
Denis M. Hurley and A. Paul Goldblum for Judicial Inquiry.
Petitioner, who is a doctor of medicine, moves to vacate an oral direction requiring him to produce his physician's records concerning certain designated persons. The basis of the motion is that the production of such records would disclose confidential information relating to the diagnoses, care and treatment of such persons as patients of the petitioner.
This objection is premature at this junction of the testimony. Although section 352 of the Civil Practice Act prohibits the disclosure of "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", there is nothing before the court showing what the records contain, or indeed that they contain any privileged information. The petitioner has not been directed to disclose any confidential communication with his patients. The records may contain dates, the fees charged, payments, the names of payors, or other matter not privileged, which may serve to refresh the witness' recollection.
In addition, should it become necessary to interrogate petitioner on privileged portions of the record, it may also become necessary to determine the question of the possible waiver of the privilege.
The motion is denied. [See, also, 5 A.D.2d 872; 6 A.D.2d 723, 724, 725; 14 Misc.2d 863.]