Opinion
March 12, 1954.
Wife's action on separation agreement which had been approved in divorce decree. Divorced husband moved to preclude plaintiff, to modify notice of examination, and to vacate subpoena duces tecum. The Supreme Court, New York County, Special Term, Eder, J., held that husband, who was a psychiatrist, could not claim privilege in respect to examination concerning visits and payments by certain patients, whose names would not be publically disclosed.
Order in accordance with opinion.
Block Halpern, New York City, for plaintiff.
M. S. I. S. Isaacs, New York City, for defendant.
Defendant has moved to preclude plaintiff, modify a notice of examination, and vacate a subpoena duces tecum.
The action is based on a separation agreement which was adopted and approved in the divorce decree subsequently obtained by plaintiff against the defendant, a prominent psychiatrist. It provided for payment by defendant of 50% of his net income for the support of plaintiff and their two children. It also provided that defendant furnish statements of his gross and net income, which are defined and calculated in the manner provided for tax returns, and defendant has to date furnished such statements and paid the amounts shown thereon. The complaint alleges fraud and misrepresentation in omission of items of income consisting of failure to include fees received from certain patients and in inclusion of deductions for payments to defendant's present wife for alleged services. The original complaint set forth the names of four patients involved, but upon the making of a motion to strike their names plaintiff consented to serve an amended complaint omitting their names. Plaintiff intends and agrees to refer to these patients by the letters A, B, C and D, a designation sufficiently identifiable between the parties by stipulation, without disclosure of their names to anyone else, and which the court holds to be adequate.
Plaintiff's affidavit states that she has received information of defendant's treating these patients and being paid substantial, sums without accounting for same. She details the expensive manner of living indulged in by defendant and argues its impossibility on the basis of his net income as reported to her.
Defendant's main contention on this motion is that section 352, Civil Practice Act, bars disclosure by a psychiatrist of the facts relating to the treatment of his patients. He urges that professional treatment by a psychiatrist is in a different category from ordinary medical services, in that the former tends to establish per se a disease or ailment which should be guarded confidentially and not disclosed without the consent of the patients. There is no need to rule on this contention, since it is entirely irrelevant to the issue here involved. The examination of defendant has been specifically limited to a designation of his patients by letters A, B, C and D, and not by name, and no public disclosure to the discredit of the patient may be anticipated. The items of examination relating to these patients are confined to matters of visits and payments, and are not directed to their condition and treatment. No general claim of privilege may be asserted against the examination as thus limited, but may, of course, be raised with regard to any specific question claimed to involve a violation of the privilege.
With regard to the motion to preclude for failure to serve bill of particulars, it is clear that the information sought is entirely within defendant's control and no useful purpose may be served by requiring plaintiff .to serve a bill prior to examination. Such bill is ordered to be served within ten days after conclusion of the examination.
Defendant's examination shall proceed at Special Term, Part II of this court on March 23, 1954 at 10:30 A.M. The second sentence of item 6 referring to "trips" is stricken; also items 7, 8 and 13 as not within the scope of an examination before trial; item .11 to be limited to payments to defendant's present wife for alleged services rendered in his business or profession.
Defendant is to produce records subpoenaed but not including "receipts for all paid bills", said records to be used only in the limited manner provided by section 296, C.P.A.