Legislation Report

COMMITTEE ON CIVIL PRACTICE LAW AND RULES

 REPORT NO. 40                                                                             May 20, 1999

S. 127                                                                                      By:     Senators Rath, Maziarz
A. 3817                                                                                   By:     M of A Nesbitt
                                                                        Senate Committee:     Alcoholism & Drug Abuse
                                                                    Assembly Committee:     Transportation
                                                                               Effective Date:     November 1st next
                                                                                                          succeeding the date on
                                                                                                          which it shall become a law

S. 3230                                                                                  By:       Senator DeFrancisco
A. 4785                                                                                  By:      M of A Connelly, Bragman
                                                                   Assembly Committee:      Codes
                                                                       Senate Committee:      Codes
                                                                              Effective Date:      Immediately

AN ACT to amend the civil practice law and rules, in relation to the admissibility of evidence of alcohol or drug content of blood obtained by medical personnel

AN ACT to amend the civil practice law and rules, in relation to the confidentiality of certain privileged information

LAW AND SECTIONS REFERRED TO: CPLR §4535 (new); Vehicle and Traffic Law §1195; CPLR, §3101; CPLR §4504

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES(#14)

THESE BILLS ARE DISAPPROVED

        These bills would create a statutory exception to the physician-patient privilege to provide, under certain circumstances, for disclosure of medical test results indicating the presence of alcohol and/or drugs in a party's blood stream and for their subsequent admission into evidence at trial in a civil action.

        S3230/A4785 would create a statutory exemption to the physician/patient privilege codified in CPLR 4504 so as to permit the Court, in a civil action, to order a doctor, nurse, dentist or chiropractor to disclose information acquired in the course of giving medical treatment to a party where an adverse party shows reasonable cause to believe that the former was acting under the influence of alcohol or drugs at the time of the act/occurrence which led to the litigation.

        S127 would amend Section 1195 of the Vehicle and Traffic Law ("VTL") and add a new Section 4535 to the CPLR to provide for the admissibility of evidence of the presence of alcohol or drugs in a person's blood, as shown by a test of that person's breath, blood, urine or saliva administered by authorized medical personnel in the course of providing treatment for injuries sustained by that person, whether or not the person was under arrest at the time of the treatment. The new CPLR section would specifically authorize the admission of such evidence in a civil action to recover damages for personal injury, property damage or wrongful death where the issue of intoxication or impairment has been raised. The new CPLR section would also create evidentiary presumptions of impairment or intoxication based upon specified blood alcohol levels confirmed by the test(s).

        The physician-patient privilege, first recognized by statute in New York in 1828 (2 Rev Stat of NY, part III, ch 7, tit 3, § 73 [1828]), prohibits disclosure of any information acquired by a physician "in attending a patient in a professional capacity, and which was necessary to enable him to enact in that capacity." The privilege applies to exclude not only information communicated orally by the patient, but also medical observations resulting from the physician's application of professional skill or knowledge; although it does not apply to observations that are obvious to those without medical training. See Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707 (1989). "The rationale supporting it is that the protection of confidential information from involuntary disclosure will promote uninhibited communication between patient and physician for the purpose of obtaining appropriate medical treatment. In the succinct words of one commentator, the statute presumes that # privilege in the courtroom will encourage disclosure in the sickroom$ (see, Alexander, Practice Commentaries, McKinney's Consolidated Laws of NY, Book 7B, CPLR 4504, at 28)." People v. Sinski, 88 N.Y.2d 487, 646 N.Y.S.2d 651 (1996).

        In the context of the blood/alcohol test, Section 1195 of the Vehicle and Traffic Law requires that the test results taken from a person arrested for operating a motor vehicle while under the influence of alcohol be admitted into evidence where such results are obtained pursuant to a chemical test administered at the direction of a police officer or by court order. A test administered by a private hospital or physician in the course of treating a party is not so admissible, Dillenbeck, supra, unless the test is relevant to a claim or counterclaim brought by the person upon whom it was administered or is relevant to a defense or excuse of such person based on his or her physical condition. Koump v Smith, 25 NY2d 287.

        The aim of each S3230/A4785 is to reverse the holding of Dillenbeck and permit the disclosure of blood alcohol tests (and in the case of S3230/A4785 statements made by the patient to his or her physician) even where the patient has not affirmatively placed his or her physical condition in issue by way of claim or defense. The theory of the bill, as stated in the sponsor's memorandum, is that the exception is required in order to "facilitate the truth finding process," and that 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." While the desire to deter persons from driving while intoxicated, is laudable, the bills unfortunately go to the very heart of the sound policy behind the patient-physician privilege in that it would deter those injured in an automobile accident from seeking out medical treatment for fear that the results of that treatment could establish serious civil or criminal liability against the driver. Given the tremendous legal consequences of a legal determination of DWI, the discouragement of seeking medical treatment would be great.

        Although it cannot be denied that driving while intoxicated is a public scourge, so too are other situations where the physician-patient privilege operates. Just as the privilege protects the driver of a vehicle who seeks medical treatment after an accident, it protects the person who seeks treatment from ingesting illegal drugs, or who was injured in a gunfight, even if that person discloses information to his or her physician that reveals the patient engaged in serious criminal activity or created seriously bodily harm. On the other hand, the proposed bills would operate not only where serious bodily injury was involved, but where the driver was exposed to claims for pure property damage.

        The sponsor's memorandum for S3230/A4785 assumes that review of the records by a Supreme Court justice would allay any concern of the potential patient. This assumption is doubtful since it is unlikely that the potential patient would be familiar with the details of the law, and because the threshold for disclosure B reasonable cause to believe B is sufficiently low that it is likely that such records would be ordered in most accident cases.

        Finally, S3230/A4785 suffers from the further infirmity that it is extremely broad. It would require disclosure not only of the results of blood alcohol test administered at a hospital, but of statements that the patient made to his or her doctors B the kinds of communications that fall squarely and classically within the realm of privilege.

        While the Committee agrees that DWI is a public problem, S3230/A4785 fundamentally undercuts the physician/patient privilege.

        S127 takes a different approach and is supported by a different theory. The sponsor's memorandum notes that there are situations "where the driver is unconscious at the wheel and it cannot be determined if that person is legally intoxicated or on drugs because the characteristics appear the same, under present law police officers are not allowed to administer a chemical test unless it is first determined that there is probable cause. The only evidence available may be that obtained by medical personnel during the treatment of the injured driver." Thus, unlike S3230/A4785, S127 would require disclosure of private medical records even where it there is no probable cause to believe that the patient was driving while intoxicated.

        In addition, S127 is itself contradictory since it provides for the admissibility of test results obtained from "any person arrested" for violating VTL §1192 and "irrespective of whether the defendant had been arrested for a violation [of VTL §1192]". Presumably, a person would not be arrested unless there was probable cause for the arrest in the first place.

        The evidentiary presumptions as to impairment and intoxication set forth in the S127 bill and, based upon specified levels of alcohol in the bloodstream, should not be included in a law establishing an exception to the privilege since the bill is aimed at impairment caused by either drugs or alcohol yet sets forth standards relating only to alcohol content in the bloodstream. It would be better to leave such evidentiary considerations and measurements to the trial court or a more comprehensive statute specifically addressing appropriate quantitative standards pertaining to both drugs and alcohol.

For the foregoing reasons, these bills are DISAPPROVED.

Person who prepared the report: Richard P. Kaye, Esq.

Chair of the Committee: Paul H. Aloe, Esq.