Upon the commencement of a personal injury action a plaintiff waives the physician-patient privilege of confidentiality and no longer possesses relevant protected health information. ( Anker v Brodnitz, 98 Misc 2d 148, 73 AD2d 589, 51 NY2d 703, 743; Koump v Smith, 25 NY2d 287; Dillenbeck v Hess, 73 NY2d 278; People v Edney, 39 NY2d 620; People v AlKanani, 33 NY2d 260; Capron v Douglass, 193 NY 11; People vBloom, 193 NY 1; Strader v Collins, 280 App Div 582; Luce v State of New York, 266 AD2d 877; Tiborsky v Martorella, 188 AD2d 795.) II. The ex parte interview of any nonparty fact witness โ medical or not โ conducted subsequent to the institution of a personal injury lawsuit โ constitutes trial preparation which is both the obligation and right of every trial attorney.
Of course, she, or at least the deceased's "personal representatives," had the undoubted right to waive the privilege. New York Civil Practice Act, ยง 354, permitting waiver "upon the trial or examination"; Capron v. Douglass, 193 N.Y. 11, 85 N.E. 827, 20 L.R.A., N.S., 1003; Lorde v. Guardian Life Ins. Co., 252 App. Div. 646, 300 N.Y.S. 721. But it is a complete non sequitur to say that this federal rule has such an extensive application as to control, and, as we believe, largely to nullify, another federal rule more directly involved, namely, Rule 56, concerning summary judgments. The limitation of Federal Rule 26(b) of the scope of examination before trial to relevant matter not privileged has a quite different objective from that visualized in the plaintiff's argument.
No such objection was made to the questions, however, and it is apparent from what transpired, that the objections were sustained solely upon the ground that answers were prohibited by reason of section 352 of the Civil Practice Act. Prior to the decision of this court in Capron v. Douglass ( 193 N.Y. 11) numerous cases had been decided in this State holding that where a plaintiff called a physician who gave testimony as to his physical condition that fact did not constitute a waiver of the prohibition contained in the statute and did not open the door so that the defendant could call other physicians to testify as to the physical condition which they found in treating the plaintiff. Many of those cases are collated in the opinion in Hethier v. Johns ( 198 App. Div. 127; revd., 233 N.Y. 370).
People v. Carfora, 25 N.Y.2d 972). When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute (Capron v. Douglass, 193 N.Y. 11; Koump v. Smith, 25 N.Y.2d 287; Davis v. Davis, 1 A.D.2d 675; Waiver of Privilege As Regards One Physician As A Waiver As To Other Physicians, Ann., 5 ALR 3d 1244, 1247-1251); and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose `for when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage. * * * The legislature did not intend to continue the privilege when there was no reason for its continuance and it would simply be an obstruction to public justice' (People v. Bloom 193 N.Y. 1, 10)". Our holding in the case now before us comports with this rationale and is but a logical extension of our determination in Al-Kanani.
We hold that where insanity is asserted as a defense and, as here, the defendant offers evidence tending to show his insanity in support of this plea, a complete waiver is effected, and the prosecution is then permitted to call psychiatric experts to testify regarding his sanity even though they may have treated the defendant (cf. People v. Carfora, 25 N.Y.2d 972). When the patient first fully discloses the evidence of his affliction, it is he who has given the public the full details of his case, thereby disclosing the secrets which the statute was designed to protect, thus creating a waiver removing it from the operation of the statute ( Capron v. Douglass, 193 N.Y. 11; Koump v. Smith, 25 N.Y.2d 287; Davis v. Davis, 1 A.D.2d 675; Waiver of Privilege As Regards One Physician As A Waiver As To Other Physicians, Ann., 5 ALR 3d 1244, 1247-1251); and once the privilege is thus waived, there is nothing left to protect against for once the revelation is made by the patient there is nothing further to disclose "for when a secret is out it is out for all time and cannot be caught again like a bird and put back in its cage.
There can be no question, therefore, that defendant's statements to Dr. Sharma that the wounds of his wrist and abdomen were self-inflicted, had they been made to a physician, would be privileged within the meaning of CPLR 4504. It has, however, long been the rule that when a patient puts in issue the condition for which he was examined by a physician he waives the privilege to the extent of permitting the physician to testify as to the facts upon which his opinion is based, but not on matters unrelated to the opinion concerning defendant's guilt of a crime ( People v Edney, 39 N.Y.2d 620; People v Al-Kanani, 33 N.Y.2d 260, 264; Matter of Lee v County Ct., 27 N.Y.2d 432, 441; People v Carfora, 25 N.Y.2d 972; People v Finn, 64 A.D.2d 526; see, People v Smith, 59 N.Y.2d 156, 164; Koump v Smith, 25 N.Y.2d 287; Hethier v Johns, 233 N.Y. 370; Capron v Douglass, 193 N.Y. 11).
In that case Judge Vann, referring to the statutory requirement that the waiver be "at the trial" after the 1899 amendment of the statute, held that the examination of a witness under a commission may well be regarded as a part "of the trial" to satisfy that requirement. In Capron v. Douglass, 193 N.Y. 11, at page 17, 85 N.E. 827, at page 829, 20 L.R.A., N.S., 1003, Judge Haight refers to a waiver of the privilege of the plaintiff in open court, "either by his own testimony or by that of others given with his knowledge and consent". When, in that way, plaintiff's "physical condition has been given to the public, the door is then thrown open for his opponent to give the facts as he understands them".
Where the plaintiff in an action brought to recover damages for personal injuries caused by the negligence of the defendant describes these injuries and their results and it appears that he has consulted or been treated by a physician in regard to them he waives the protection of section 834 of the Code (now section 352, Civil Practice Act). The physician may then be called by the defendant and examined as to any information acquired by him in the course of such consultation or treatment. The rule as it was formerly understood was altered by our decision in Capron v. Douglass ( 193 N.Y. 11). We there took the position that where the patient tenders to the jury the issue as to his physical condition it must in fairness and justice be held that he has himself waived the obligation of secrecy which would otherwise exist.
"In some jurisdictions it is held that a waiver of the privilege as to one of several physicians attending the patient waives such privilege as to all of such physicians, whether they attend him in consultation and together, or whether they attend him singly and at different times. Chaffee v. Kaufman (1923) 113 Kan. 254, 214 P. 618; State v. Long (1914) 257 Mo. 199, 165 S.W. 748; Weissman v. Wells (1924) 306 Mo. 82, 267 S.W. 400; O'Brien v. Western Implement Mfg. Co. (1910) 141 Mo. App. 331, 125 S.W. 804; Oliver v. Aylor (1913) 173 Mo. App. 323, 158 S.W. 733; Michaels v. Harvey (1915) Mo. App., 179 S.W. 735 (later appeal in (1917) Mo. App., 195 S.W. 519); McPherson v. Harvey (1916) Mo. App., 183 S.W. 653; Priebe v. Crandall (1916) Mo. App., 187 S.W. 605, Capron v. Douglass (1908) 193 N.Y. 11, 85 N.E. 827, 20 L.R.A., N.S., 1003; Hethier v. Johns (1922) 233 N.Y. 370, 135 N.E. 603 (overruling decision in (1921) 198 A.D. 127, 189 N.Y.S. 605); Dewey v. Cohoes L. Bridge Co. (1915) 170 A.D. 117, 155 N.Y.S. 887; Kraus v. M. G. W. Corp. (1922) 203 A.D. 582, 196 N.Y.S. 845; Fennelly v. Schenectady R. Co. (1922) 201 A.D. 211, 193 N.Y.S. 641; Cretney v. Woodmen Acci. Co. (reported herewith), [ 196 Wis. 29, 219 N.W. 448, 62 A.L.R.] 675."
Ordinarily a physician may not disclose 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 (Civ. Prac. Act, ยง 352). In a personal injury action where plaintiff tenders to the jury the issue of his physical condition he waives the privilege (Capron v. Douglass, 193 N.Y. 11; Hethier v. Johns, 233 N.Y. 370). In death cases the courts have not yet made a comparable ruling, although aside from legislative policy the reasons therefor are equally as strong in a death case as in a personal injury action, perhaps stronger in view of the measure of damages to be applied.