In the Matter of the Grand Jury
Investigation in New York County.
New York City Health and Hospitals Corporation,
Respondent,
v.
Robert M. Morgenthau, &c.,
Appellant.
2002 NY Int. 113
Hospitals may assert a physician-patient privilege under CPLR 4504(a) to maintain the confidentiality of patient medical records. The case before us involves the extent to which Grand Juries may, compatibly with CPLR 4504(a) , acquire medical records for the purpose of identifying criminal assailants.
On May 25, 1998, an unidentified assailant stabbed a
man to death in Manhattan. Police could determine only that the
assailant was a Caucasian male in his 30s or early 40s and that
he may have been bleeding when he fled the scene. Over two and a
half years later, still unable to identify him, the District
"[a]ny and all records pertaining to any male Caucasian patient between the ages of 30 to 45 years, who was treated or who sought treatment on May 25th, 1998 through May 26th, 1998 for a laceration, puncture wound or slash, or other injury caused by or possibly caused by a cutting instrument and/or sharp object, said injury being plainly observable to a lay person without expert or professional knowledge; said records including but not limited to said patient's name, date of birth, address, telephone number, social security number and other identifying information, except any and all information acquired by a physician, registered nurse or licensed practical nurse in attending said patient in a professional capacity and which was necessary to enable said doctor and/or nurse to act in that capacity."
Citing CPLR 4504(a) ,
Our analysis begins with the history and purpose of the
physician-patient privilege. Common law did not recognize any
confidentiality in communications between patients and medical
professionals. New York was the first state to enact a
physician-patient privilege statute (see 2 R.S., pt III, ch 7,
tit 3, § 73 [1828]; see also Dillenbeck v Hess, , 73 NY2d 278, 284
[1989]; Fisch, NY Evid § 541, at 356 [2d ed. 1977]). The modern
codification of the privilege, CPLR 4504(a) , serves three core
policy objectives implicated on this appeal (see generally
Prince, Richardson on Evidence, §§ 5-301, 5-302, at 248-249
[Farrell 11th ed.]). First, the physician-patient privilege
seeks to maximize unfettered patient communication with medical
Though in derogation of the common law, the physician-
patient privilege is to be given a "broad and liberal
construction to carry out its policy" (Matter of Grand Jury
Investigation in Onondaga County, , 59 NY2d 130, 134 [1983]; Matter
of City Council of the City of N.Y. v Goldwater, 284 NY 296, 300
[1940]). On this appeal, the District Attorney contends that
enforcement of the subpoenas would not offend these policies or
violate CPLR 4504(a) . The prosecutor argues that the subpoenas
do not seek information acquired by means of medical diagnosis,
treatment or expertise, and should be enforced because they
purport to seek records only of injuries "plainly observable to a
lay person without expert or professional knowledge." We
disagree. We agree that the physician-patient privilege generally
does not extend to information obtained outside the realms of
medical diagnosis and treatment. Indeed, because the policies
underlying the physician-patient privilege implicate confidential
patient relationships with medical professionals as medical
professionals, we have generally limited the privilege to
information acquired by the medical professional "through the
application of professional skill or knowledge" (Dillenbeck, 73
NY2d at 284 n 4). Accordingly, notwithstanding CPLR 4504(a) ,
medical professionals have been authorized to disclose
observations of a heroin packet falling from a patient's sock
(see People v Capra, , 17 NY2d 670 [1966]), injuries on a patient's
cheek and lip (see People v Giordano, 274 AD2d 748 [2000]), and a
We conclude, however, that Onondaga County controls
this appeal and directs that the challenged subpoenas be quashed.
In Onondaga County, as in the instant case, the victim was
stabbed to death under circumstances that led investigators to
conclude that the assailant may have left the scene bleeding.
Endeavoring to identify the assailant, the District Attorney of
Onondaga County issued a Grand Jury subpoena on a hospital,
seeking "all medical records pertaining to treatment of any
person with stab wounds or other wounds caused by a knife"
(Onondaga County, 59 NY2d at 133). In quashing the subpoena, the
Court held that compliance might have "require[d] the hospital to
which it is addressed to divulge information protected by the
physician-patient privilege" (id. at 132). The Court concluded
that under those circumstances, it was "not * * * possible to
We perceive no difference of any actual substance
between the subpoena quashed in Onondaga County and the ones
challenged here. The records potentially responsive to the HHC
subpoenas are precisely the same as those sought in Onondaga
County. Though the District Attorney crafted the instant
subpoenas with Onondaga County in mind by broadening their scope
(to include most bleeding wounds rather than only knife wounds)
and narrowing their reach (to include only wounds "plainly
observable to a lay person"), the subpoenas still run afoul of
Onondaga County. Here, much as in Onondaga County, the challenged
subpoenas define the class of records sought by the "cause or
potential cause" of injury. Thus, the subpoenas inevitably call
for a medical determination as to causation "through the
application of professional skill or knowledge" (Dillenbeck, 73
NY2d at 284 n 4). It is precisely this intrusion into the
physician-patient relationship that CPLR 4504(a) seeks to
prevent. The inherently medical nature of this judgment is not
obviated by attempting to qualify it in terms of what a layperson
might plainly observe. By merely reviewing hospital records after patients
obtain emergency medical treatment, hospitals cannot reasonably
This result is further justified by the policy
objectives of the physician-patient privilege and the broad
construction of CPLR 4504(a) required to achieve them. Patients
should not fear that merely by obtaining emergency medical care
they may lose the confidentiality of their medical records and
their physicians' medical determinations. A contrary result
would discourage critical emergency care, intrude on patients'
confidential medical relationships and undermine patients'
reasonable expectations of privacy. Finally, we note that none of the Legislature's many
statutory exceptions to the physician-patient privilege apply
here. For example, notwithstanding CPLR 4504(a) , Public Health Law § 2101(1) obliges physicians to immediately disclose cases of
communicable disease (see Thomas v Morris, 286 NY 266, 268-270
[1941]), and Social Services Law § 413(1) requires all medical
Inasmuch as the Legislature enacted an exception to
CPLR 4504(a) directing the reporting of potentially life-
threatening stab wounds (see Penal Law § 265.25), we reaffirm our
conclusion that the Legislature intended CPLR 4504(a) to protect
against disclosure those medical records of patients whose stab
wounds are less severe (see Onondaga County, 59 NY2d at 136).
Thus, because none of the Legislature's other exceptions to the
privilege apply, the records the District Attorney seeks remain
privileged under CPLR 4504(a) , and the subpoenas seeking their
disclosure must be quashed. Accordingly, the order of the Appellate Division should
be affirmed, without costs.