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.
Criminal defendant struck and killed a number of children after allegedly suffering a seizure while driving. Defendant was placed under arrest and taken to a hospital for treatment. While at the hospital, defendant related his medical history to a physician who diagnosed defendant as suffering from epilepsy. Defendant was charged with violating N.Y. Penal Law § 1053-a. At trial, the physician testified as to his conversation with defendant. Defendant argued that his actions were not sufficiently culpable to violate § 1053-a and that the physician's testimony should have been inadmissible.
Whether the information obtained by an attending physician as to the patient’s prior medical history is privileged communication and therefore inadmissible.
The court first held that defendant's conduct arguably fell within the statute's requirement that defendant exhibit a disregard for the consequences that would ensue from his actions. The court then held that, as the physician diagnosed defendant and defendant was given no reason to believe their communication was not confidential, the conversation was barred under N.Y. Civ. Prac. Act § 352. Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.