Opinion
2007NY053042.
Decided August 21, 2008.
The prosecution was represented by Assistant District Attorney Melissa Penabad, New York County District Attorney's Office, One Hogan Place, NY, NY 10013, 212-335-9983. Defendant was represented by Marcia Seckler, Esq., Legal Aid Society, 49 Thomas Street, NY, NY 10013, 212-298-5230.
Defendant is charged with Operating a Motor Vehicle While Intoxicated (in violation of Vehicle and Traffic Law § 1192(3)) and Operating a Motor Vehicle While Impaired (in violation of Vehicle and Traffic Law § 1192(1)), arising out of an accident which occurred on July 13, 2007. By so-ordered, ex parte subpoena duces tecum dated December 6, 2007, the People sought (and apparently have obtained) defendant's medical records. Defendant now moves this court for an order precluding the People from introducing those records at trial, on the ground that they were obtained in violation of defendant's physician-patient privilege. The People oppose the motion, contending that defendant has waived any such privilege. For the reasons set forth below, the motion is denied.
CPLR § 4504(a) is the statute defining the physician-patient privilege. It provides, in pertinent part, " Unless the patient waives the privilege, a person authorized to practice medicine . . . shall not be allowed to 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." (emphasis added).
In People v Greene ( 9 NY3d 277 [(2007]), the Court of Appeals squarely held that evidence obtained as a result of a violation of the physician-patient privilege need not be suppressed at a criminal trial. See People v. Whyte , 48 AD3d 1040 (4th Dept.), lv denied, 10 NY3d 872 (2008). Thus, to the extent that the People sought and obtained access to defendant's hospital records in violation of defendant's physician-patient privilege, the records may not be suppressed. As the Greene Court stated, "The physician-patient privilege . . . does not serve primarily to protect individuals against government conduct; it regulates a private relationship." 9 NY3d at 281.
Moreover, to the extent that the records obtained via the subpoena relate to defendant's condition at the time of his alleged refusal, defendant clearly waived any privilege. As defendant concedes, his attorney's assertions at the arraignment regarding his condition while in the emergency room waived the privilege as to his medical records for that time period, at the very least. See, e.g., People v O'Connor, 290 AD2d 519 (2d Dept.), lv denied, 97 NY2d 758 (2002); People v Gonzalez, 239 AD2d 931 (2d Dept.), lv denied, 90 NY2d 893 (1997); People v Feldmann, 110 AD2d 906 (2d Dept. 1985). However, under Greene there is no need for the Court to determine the extent of any waiver at this juncture, as suppression of defendant's hospital records is not required.
Accordingly, defendant's motion to suppress his medical records is denied.
This is the decision and order of the Court.