Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. ( 154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman ( 183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible.
See Comment, Evidence: The Psychotherapist-Patient Privilege Under Federal Rule of Evidence 501, 23 Washburn L.J. 708, 712 (1984). It is significant to observe that the court found some support for its position from the New York case of Denaro v. Prudential Co. of America, 154 A.D. 840, 139 N.Y.S. 758 (1913) dealing with physical illness and the necessity of a doctor to inquire of immediate members of the family in a household in making a house call to attend a sick person. Grosslight has been subsequently cited by the California Supreme Court with approbation.
The Patten case has been frequently followed with approval by the trial and other courts in this state. ( Becker v. Met. Life Ins. Co., 99 App. Div. 5, 9; Jennings v. Supreme Council L.A.B. Assn., 81 App. Div. 76, 85; McGillicuddy v. Farmers L. T. Co., 26 Misc. Rep. 55, 60; Denaro v. Prudential Ins. Co., 154 App. Div. 840, 842; Hammerstein v. Hammerstein, 74 Misc. Rep. 567.) The Patten opinion has been substantially quoted and approved in Encyclopedia of Evidence, volume 10, page 128; Wigmore on Evidence, volume 4, section 2384, and note; The Modern Law of Evidence, Chamberlayne, volume 5, section 3705, and notes.
A New York case dealing with a different but a related issue has some language tending to support our decision. In Denaro v. Prudential Ins. Co. of America (1913) 154 App. Div. 840 [139 N YS. 758], the court said (at p. 761): "[W]hen a physician enters a house for the purpose of attending a patient, he is called upon to make inquiries, not alone of a sick person, but of those who are about him and who are familiar with the facts, and communications necessary for the proper performance of the duties of a physician are not public, because made in the presence of his immediate family or those who are present because of the illness of the person."(1c) In the case at bar, the communications from petitioner's parents are necessary for the proper performance of the psychotherapist's duties, and applying the reasoning of the court in Denaro, those communications also should not be public.
That the testimony was improperly received, unless the statutory provision was waived, is established beyond question. ( Denaro v. Prudential Insurance Company of America, 154 App. Div. 840; Holden v. Metropolitan Life Insurance Co., 165 N.Y. 13. ) It is urged by the learned counsel for the defendant that the plaintiff waived the provisions of section 352 of the Civil Practice Act and made the testimony competent by introducing in evidence the proofs of death which were served on the defendant, particularly in view of the fact that the policy in question contained a provision that "proofs of death shall be evidence of the facts therein stated in behalf of, but not against the company.