Whether a conversation that a criminal defendant had with a physician at the hospital was admissible in defendant's trial for culpable negligence.
No. The physician's testimony was inadmissible.
LexisNexis Headnote 13: Privileges, Doctor-Patient Privilege The true test in determining whether a physician-patient communication is privileged under N.Y. Civ. Prac. Act § 352 appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of a third person, the communication was intended to be confidential and complied with the other provisions of the statute.
From "narrow by this headnote," a recent case citing Decina is: People v Hartle, 122 A.D.3d 1290, 995 N.Y.S.2d 424, 2014 N.Y. App. Div. LEXIS 7764, 2014 NY Slip Op 07812 People v Hartle: "Here, we conclude that defendant did not meet his burden of establishing that the privilege applied (see Decina, 2 NY2d at 141), 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. In any event, even if the physician-patient privilege applied, we conclude that any error in allowing the testimony is harmless. The evidence of guilt is overwhelming, and there is no significant probability that the absence [***3] of the error would have led to an acquittal."
Defendant struck and killed a number of children after allegedly suffering a seizure while driving. He was placed under arrest and taken to a hospital for treatment. While at the hospital, he related his medical history to a physician, who diagnosed him as suffering from epilepsy. Defendant was charged with culpable negligence, and, at trial, the physician testified about his conversation with defendant.
The court held that the conversation was privileged under N.Y. Civ. Prac. Act § 352 because the physician diagnosed defendant and defendant was given no reason to believe their communication was not confidential. Confidentiality was not undermined by the presence of a police guard, pursuant to the orders of the district attorney, in or near the doorway of the hospital room, where he could overhear the conversation; it was significant that the guard's presence was ordered by command of the public authorities. Cases in the context of attorney-client privilege were distinguishable.