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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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