Opinion
May 28, 1951.
In an action to annul a marriage, defendant appeals from an order insofar as such order directs her to submit to a mental and psychiatric examination by a physician appointed by the court, and which authorizes the appointed physician to inspect the records of institutions where defendant has been confined, and directs physicians and hospitals to permit the inspection of defendant's case history records. Order reversed on the law, with $10 costs and disbursements, and the motion denied, without costs, with leave to renew the application as incidental to an examination of the defendant before trial or to a taking of defendant's deposition on papers showing that she is competent to testify. (Cf. Mulligan v. State of New York, 277 App. Div. 437. ) Plaintiff discloses the sources of his information as to the lunacy of defendant. Presumably the information which he has received was not considered to be privileged. (Civ. Prac. Act, § 352.) The order appealed from places no restriction on the examination that may be made of defendant, or of the inspection of records, or of the matter which other physicians and hospitals are directed to reveal. No specific hospital or institution or physician is named in the order. No notice of the application has been given to any whose records are to be examined. Defendant has not waived her privilege. At a trial the appointed physician must base his opinion of lack of sanity on his own examination and established facts. Under the order he may obtain pure hearsay and incompetent information. The defendant is entitled to protection against the possibility that the report of the physician will be based on information which should not be disclosed. Even where a mental examination is authorized by Statute for advice to the court (Domestic Relations Law, § 7, subd. 5), it is required that a physician connected with a State Hospital shall give his testimony before a referee if his information has been acquired while attending a patient in a professional capacity. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.