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Admission of Child Abuse Made by Defendant to Psychiatrist Protected by Physician-Patient Privilege—Even Though the Admission Can Be Disclosed in Child Protective Proceedings, the Privilege Applies in a Criminal Trial

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that an admission of child sexual abuse made to the defendant's psychiatrist was privileged.  The psychiatrist should not have been allowed to testify about the admission at defendant's trial.  The error was not harmless. The Court made it clear that the relaxed evidentiary standards in child protective proceedings where physicians are required to report abuse, do not extend to the context of a criminal trial where the defendant's liberty is at stake:

The Legislature has determined that the protection of children is of paramount importance, so much so that it has either limited or abrogated the privilege through statutory enactments.

The People erroneously assert that these exceptions place offenders on notice that the physician-patient privilege does not apply to statements or admissions triggering a duty to disclose. But it is one thing to allow the introduction of statements or admissions in child protection proceedings, whose aim is the protection of children, and quite another to allow the introduction of those same statements, through a defendant's psychiatrist, at a criminal proceeding, where the People seek to punish the defendant and potentially deprive him of his liberty. Evidentiary standards are necessarily lower in the former proceedings than in the latter because the interests involved are different. Thus, the relaxed evidentiary standards in child protection proceedings lend no credence to the People's argument that defendant should have known that any admission of abuse he made to his psychiatrist would not be kept confidential. People v Rivera, 2015 NY Slip Op 03764, CtApp 5-7-15

 

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Defendant’s Hospital Records Properly Admitted—Physician-Patient Privilege Waived by Defense Counsel’s Attempt to Show (During Cross-Examination of Police Officers) that Defendant’s Conduct Was Related to a Medical Condition, Not Intoxication

The Second Department determined defendant’s hospital records were properly admitted into evidence because the defendant waived the physician-patient privilege by placing his medical condition in issue.  During cross-examination of the police officers, defense counsel attempted to show defendant’s conduct was the result of a medical condition, not intoxication. People v Williams, 2015 NY Slip Op 03391, 2nd Dept 4-22-15

 

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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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