STATE OF NEW YORK
       ________________________________________________________________________
 
                                          372
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                      (Prefiled)
 
                                    January 3, 2001
                                      ___________
 
       Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
         when printed to be committed to the Committee on Codes
 
       AN ACT to amend the civil practice law and rules,  in  relation  to  the
         confidentiality of certain privileged information
 
         The  People of the State of New York, represented in Senate and Assem-
       bly, do enact as follows:
 
    1    Section 1. The first undesignated  paragraph  of  subdivision  (a)  of
    2  section  4504 of the civil practice law and rules, as amended by chapter
    3  555 of the laws of 1993, is amended to read as follows:
    4    Unless the patient waives the privilege, or a court directs by written
    5  order pursuant to subdivision (b) of section thirty-one hundred  one  of
    6  this  chapter,  a  person  authorized  to  practice medicine, registered
    7  professional nursing, licensed practical nursing, dentistry, podiatry or
    8  chiropractic shall not be allowed to disclose any information  which  he
    9  acquired  in  attending  a patient in a professional capacity, and which
   10  was necessary to enable him to act in that capacity.   The  relationship
   11  of a physician and patient shall exist between a medical corporation, as
   12  defined  in  article forty-four of the public health law, a professional
   13  service corporation organized under  article  fifteen  of  the  business
   14  corporation  law  to  practice  medicine,  a university faculty practice
   15  corporation organized under section fourteen hundred twelve of the  not-
   16  for-profit  corporation  law  to practice medicine or dentistry, and the
   17  patients to whom they respectively render professional medical services.
   18    § 2. Subdivision (b) of section 3101 of the  civil  practice  law  and
   19  rules,  as amended by chapter 98 of the laws of 1993, is amended to read
   20  as follows:
   21    (b) Privileged matter. Upon objection by a person entitled  to  assert
   22  the  privilege,  privileged  matter  shall  not  be obtainable provided,
   23  however, that the court in a civil proceeding may order a person author-
   24  ized to practice medicine,  registered  professional  nursing,  licensed
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00888-01-1

       S. 372                              2
 
    1  practical  nursing,  dentistry,  podiatry  or  chiropractic  to disclose
    2  information which he or she acquired in  attending  to  a  party  to  an
    3  action  as a patient in a professional capacity, and which was necessary
    4  to enable him or her to act in that capacity where another party in such
    5  action  makes  a preliminary showing to the court of reasonable cause to
    6  believe that at the time of the occurrence, act or omission alleged as a
    7  basis for a cause of action or defense, such party had alcohol or a drug
    8  as defined in subdivision fifteen of section thirty-three hundred two of
    9  the public health law in his blood.
   10    § 3. This act shall take effect immediately and shall apply to actions
   11  commenced on and after such date.

 
BILL NUMBER: S372
 
SPONSOR: DEFRANCISCO

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the confidentiality of certain privileged information
 
 
PURPOSE:
To allow a Supreme Court Justice in a civil proceeding to order a
medical professional to provide information relative to the treatment of
a party believed to have been acting under the influence of alcohol or
drugs at the time of the act, omission or occurrence which led to the
litigation.
 
SUMMARY OF PROVISIONS:
Amends the medical privilege and disclosure sections of the Civil Prac-
tice Law and Rules (CPLR §4504, sub. a; §3101, sub. b) to allow a
Supreme Court Justice in a civil proceeding to order a medical profes-
sional to provide information relative to the treatment of a party if
the adverse party shows reasonable cause to believe that such party was
acting under the influence of alcohol or drugs at the time of the act,
omission or occurrence which led to the litigation.
 
EXISTING LAW: A person who is under the influence of alcohol or drugs
and causes injury to an innocent party may prevent access to treatment
records reflecting blood alcohol or drug content.   
DILLENBECK V. HESS,
73 NY2d 278 (1989).
 
JUSTIFICATION:
In 1989 the Court of Appeals decided the case of  
DILLENBECK V.
HESS.ct.  This decision has been interpreted by some courts to mean
that if a driver of an automobile is drunk, causes an accident in which
an innocent party is killed, but gets hurt himself, the medical records
which show his alcohol intake are not discoverable because they are
privileged. Under existing civil procedures, so long as the defendant
does not put his medical condition in issue, and claims that he cannot
recall whether and to what degree he was drinking, the plaintiff is
totally deprived of proving the condition of the defendant at the time
of his tortious conduct.
As the Court of Appeals noted in  
DILLENBECK, the medical privilege was
not developed at common law, but is rather a creature of statute. The
rationale for the medical privilege is to encourage members of our soci-
ety to seek medical treatment for the various ailments from which they
may suffer without fear that the condition or the seeking of medical
treatment will be made public. The proposed amendment would assure
continued protection to the patient by requiring review by a Justice of
the Supreme Court before any such records could be required to be
provided to the adverse party.
Judge Bellacosa, in dissenting from and commenting upon the majority
opinion in  
DILLENBECK, said it best: "...  defendant is thus entitled
to wield the physician-patient privilege against the truth-finding proc-
ess in a case in which the remedial statutory protection (CPLR §4504,
sub. a) and in which sound policy and interpretation compel the opposite
result" (73 NY2d 290).  This legislation would facilitate the truth-
finding process and be based upon sound policy.
 
LEGISLATIVE HISTORY:  S.4230 of 1995-96, S.484 of 1997-98, S.3230 of
1999-2000.
 
FISCAL IMPLICATIONS: None.
 
EFFECTIVE DATE: Immediately.