noting that "to effect a waiver, the party must do more than simply deny the allegations in the complaint—he or she must affirmatively assert the condition 'either by way of counterclaim or to excuse the conduct complained of by the plaintiff'" (quoting Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857 (1969))Summary of this case from Yutong Jin v. Choi
Argued January 11, 1989
Decided February 23, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Stephen Smyk, J.
Maurice P. O'Brien for appellants. Timothy J. Perry for Sherry L. Hess, respondent.
Kelly E. Fischer for Edward A. Carle and another, respondents.
In Koump v Smith ( 25 N.Y.2d 287), we noted that a litigant does not waive the physician-patient privilege merely by defending a personal injury action in which his or her mental or physical condition is in controversy unless, in so defending, the litigant "affirmatively asserts the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff" (id., at 294). Today, we hold that where a party defending a personal injury action validly asserts the privilege and has not affirmatively placed his or her medical condition in issue, the plaintiff may not effect a waiver of the privilege merely by introducing evidence demonstrating that the defendant's physical condition is genuinely "in controversy" within the meaning of the statute permitting discovery of medical records (CPLR 3121 [a]).
The complaint states that on July 13, 1985, Tonia Dillenbeck was killed and her son, Michael Dillenbeck, was seriously injured when their automobile collided head on with another vehicle driven by defendant, Sherry Hess. It is alleged that the accident occurred when defendant, who was traveling north on Route 7 in the Town of Conklin, negligently crossed the center line and struck the Dillenbecks' vehicle as it was traveling in the southbound lane. The complaint charges that defendant's intoxicated condition was a proximate cause of the accident and that the codefendants, owners and operators of Red's Good Luck Tavern and Eddie's Conklin Inn where defendant allegedly had been drinking throughout much of the afternoon and evening, negligently contributed to her intoxication by serving excess quantities of alcohol to her. The police accident report notes the time of the accident as 9:45 P.M.
It is not disputed that defendant received serious injuries in the accident and was hospitalized immediately thereafter. Although it appears that a blood alcohol test was performed at the hospital for diagnostic purposes, no test to determine blood alcohol content was administered at the direction of a police officer or by court order pursuant to Vehicle and Traffic Law § 1194. In her answer, defendant simply denies the allegations in the complaint and asserts the affirmative defenses of comparative negligence and the failure of plaintiffs to wear available seat belts.
We note in passing that section 1195 of the Vehicle and Traffic Law requires that the blood alcohol test results of any 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 (Vehicle and Traffic Law §§ 1192, 1194). This statutory provision, however, obviously does not contemplate the mandatory disclosure of blood alcohol evidence not obtained in the context of a possible criminal prosecution under the Vehicle and Traffic Law. Furthermore, we see no "unnecessary inconsistency" (dissenting opn, at 292) in declining to import the provisions of that criminal discovery statute into this civil case to compel disclosure of hospital records containing information acquired by defendant's physician for the express purpose of medical treatment. This is particularly true where the Legislature has not provided the slightest indication that it intended to abrogate the protection accorded ordinary physician-patient communications under CPLR 3101 (b) and 4504 (a) in all cases where blood alcohol evidence is sought in connection with an action arising out of a motor vehicle accident.
Following the accident, defendant was indicted and charged with second degree manslaughter, vehicular manslaughter, third degree assault, second degree reckless endangerment and operating a vehicle while under the influence of alcohol. After a jury trial, defendant was convicted of the lesser included offense of criminally negligent homicide and acquitted of all other charges. The results of the blood alcohol test administered to defendant at the hospital, indicating a blood alcohol level of .27%, were ruled inadmissible at defendant's criminal trial, the court concluding that the test results were protected by the physician-patient privilege and that the privilege had not been waived.
Alleging that defendant's hospital records contain evidence of her blood alcohol content at the time of the accident, plaintiffs moved, pursuant to CPLR 3121 (a), to compel defendant to disclose any medical records relating to her physical condition on the date of the accident, including the results of any blood alcohol test administered to defendant upon her admission to the hospital. The papers submitted in support of the motion included an affidavit by plaintiffs' attorney, the police accident report, and three affidavits of persons who claim to have been with defendant prior to the accident and to have observed her consume alcohol over approximately a seven-hour period. Plaintiffs also submitted excerpts from defendant's examination before trial wherein she claimed to have no memory of the events occurring prior to the accident except that she remembered being at Red's Good Luck Tavern earlier in the day for a union meeting and having one drink while she was there. Excerpts from the deposition testimony of the manager of Eddie's Conklin Inn, where defendant allegedly continued to imbibe after leaving Red's Good Luck Tavern, reveal that following the accident the manager was informed by his bartender that on the night of the accident the bartender had "shut off" a woman from alcoholic beverages because she had been drinking excessively and that the woman might have been defendant.
Excerpts from the minutes of defendant's sentencing upon her conviction of criminally negligent homicide confirming that a blood alcohol test was administered to defendant upon her admission to the hospital were also submitted, as was a copy of a written notification denying defendant's claim for no-fault insurance benefits.
By cross motion defendant sought an order of protection (CPLR 3122), asserting the physician-patient privilege (CPLR 4504). Supreme Court denied plaintiffs' motion and granted defendant's cross motion, concluding that inasmuch as defendant had not affirmatively placed her physical condition in issue, the physician-patient privilege precluded discovery of her medical records (CPLR 3101 [b]; 4504 [a]).
A majority of the Appellate Division affirmed, stating that although defendant's physical condition at the time of the accident "is undeniably in issue", defendant had not affirmatively placed her condition in controversy and that under Koump v Smith (supra) the privilege is not waived where the defendant simply denies the allegations in the complaint ( 140 A.D.2d 766, 767). The court concluded further that defendant had not waived the privilege in testifying that she suffers from amnesia concerning the accident since she was not seeking damages for that condition nor was she claiming that her amnesia in any way excused her conduct (id., at 767). The two dissenters, relying on Judge Bergan's concurrence in Koump, would have allowed inspection of defendant's hospital records, concluding that the privilege must yield where, as here, plaintiffs submit evidence demonstrating that defendant's physical condition is genuinely "in controversy".
The Appellate Division granted leave to appeal positing the following certified question: "Did this court err as a matter of law in affirming the order of the Supreme Court which denied plaintiffs' motion for discovery of defendant Sherry L. Hess' medical and hospital records and granted said defendant's cross motion for an order of protection?" We now affirm and answer the certified question in the negative.
The physician-patient privilege, presently contained in CPLR 4504, is entirely a creature of statute. At common law, confidential communications between physicians and patients received no protection against disclosure in a legal proceeding, however unethical such disclosure may have been viewed when occurring outside the courtroom (Fisch, N Y Evidence § 541 [2d ed]; McCormick, Evidence § 98 [3d ed]; see, Williams v Roosevelt Hosp., 66 N.Y.2d 391, 395; Koump v Smith, 25 N.Y.2d, at 293, supra). The common-law rule is perhaps best illustrated by the Duchess of Kingston's Trial, wherein the Duchess was tried for bigamy and the Crown sought to compel her physician to testify concerning certain admissions made by the Duchess in confidence. When the physician expressed reluctance to divulge the secret admissions of his patient, the court ordered him to testify, explaining: "If a surgeon was voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever" (The Duchess of Kingston's Trial, 20 How St Trials 355, 573 ; Shuman, The Origins of the Physician-Patient Privilege and Professional Secret, 39 Sw LJ 661, 671 ).
New York State became the first jurisdiction to depart from the common-law rule when it adopted the physician-patient privilege by statute in 1828 (2 Rev Stat of NY, part III, ch 7, tit 3, § 73 ). In its current form, the privilege 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 act in that capacity" (CPLR 4504 [a]). The privilege applies not only to information communicated orally by the patient, but also to "information obtained from observation of the patient's appearance and symptoms, unless the facts observed would be obvious to laymen" (Fisch, N Y Evidence § 544, at 361 [2d ed]; see, 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.08; Matter of Coddington, 307 N.Y. 181, 193; Edington v Mutual Life Ins. Co., 67 N.Y. 185, 194). Moreover, the form in which the information is sought to be introduced is irrelevant, as the privilege operates whether the information is contained in a patient's medical files or is sought to be introduced at trial in the form of expert testimony (see, Williams v Roosevelt Hosp., 66 N.Y.2d, at 396, supra; Davis v Supreme Lodge, Knights of Honor, 165 N.Y. 159, 163; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.08a).
The suggestion in the dissent that defendant's blood alcohol test results may not qualify as a "communication" protected under CPLR 4504 is clearly erroneous and directly contradicted by the case law and expert authorities. Though a physician is not precluded from testifying concerning ordinary incidents and facts of a person's medical history that are obvious to those without professional training, it is universally acknowledged that any medical information acquired by the physician through the application of professional skill or knowledge is protected by the statute (Richardson, Evidence § 432, at 424-425 [Prince 10th ed]; Fisch, N Y Evidence § 544, at 361 [2d ed]; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.08; see, Williams v Roosevelt Hosp, 66 N.Y.2d 391; Klein v Prudential Ins. Co., 221 N.Y. 449, 453). Quite clearly, the information obtained by defendant's physician in administering a blood alcohol test to defendant was the product of professional skill and knowledge and would not have been apparent to a layman uninitiated in the medical arts. That information, therefore, is without question a protected communication under CPLR 4504.
We have previously noted that this State's codification of the physician-patient privilege was based largely "on the belief that fear of embarrassment or disgrace flowing from disclosure of communications made to a physician would deter people from seeking medical help and securing adequate diagnosis and treatment" (Williams v Roosevelt Hosp., 66 N.Y.2d, at 395, supra; Matter of Camperlengo v Blum, 56 N.Y.2d 251, 254-255; Edington v Mutual Life Ins. Co., 67 N.Y. 185, 192, supra; see, Fisch, N Y Evidence § 541 [2d ed]; McCormick, Evidence § 98 [3d ed]). Additionally, it was feared that physicians would alter or conceal the truth when forced, in the absence of any privilege, to choose between their legal duty to testify and their professional obligation to honor their patients' confidences (Fisch, N Y Evidence § 541 [2d ed]; Reports of Commissioners on Revision of Statutes of NY, 3 Rev Stat of NY, Appendix, at 737 ). A third rationale supporting the privilege that has gained increased currency in recent years is premised on the need to protect the privacy expectations of patients (see generally, Developments in the Law, Medical and Counseling Privileges, 98 Harv L Rev 1530, 1544-1548 ; McCormick, Evidence § 105, at 259 [3d ed]). This court recognized long ago that "[t]he disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity, naturally shocks our sense of decency and propriety, and this is one reason why the law forbids it" (Davis v Supreme Lodge, Knights of Honor, 165 N.Y. 159, 163, supra). Thus, it has been argued that "the value placed on privacy, manifested both by general concerns for privacy and by the specific concerns for an individual's bodily integrity found in constitutional, statutory, and common law doctrines, suggests a strong policy basis" for the privilege (Medical and Counseling Privileges, op. cit., 98 Harv L Rev, at 1548; see, Whalen v Roe, 429 U.S. 589, 598-599 [government disclosure of private medical information implicates constitutional right to privacy]).
Although the physician-patient privilege has been criticized by commentators who maintain that there is little empirical support for the proposition that the privilege promotes public health (5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.02; Fisch, N Y Evidence § 557 [3d ed]; see, Williams v Roosevelt Hosp., 66 N.Y.2d, at 395-396, supra), that the principle of medical confidentiality is antiquated and no longer regularly observed by physicians (Fisch, N Y Evidence § 557 [2d ed]; Goldberg, The Physician-Patient Privilege — An Impediment to Public Health, 16 Pac LJ 787, 788-789 ), and that protection of patients' privacy is not a sufficiently important interest to justify nondisclosure of legally pertinent medical information (McCormick, Evidence § 105, at 259 [3d ed]; Goldberg, op. cit., at 803), the privilege remains rooted in both the statutory law and public policy of New York State. The issue on this appeal, therefore, is whether the information requested by plaintiffs, acquired by defendant's physician in the course of treating her for injuries incurred in the automobile accident and thus privileged under CPLR 4504, must be disclosed once it is established that defendant's physical condition is "in controversy" and thus subject to discovery under CPLR 3121 (a), notwithstanding that defendant has not placed her physical condition in controversy or otherwise waived the privilege.
In Koump v Smith ( 25 N.Y.2d 287, supra), we examined the operation of the physician-patient privilege in the context of a personal injury action. In that case, the plaintiff was injured in an automobile accident and, as here, it was alleged that the driver of the offending vehicle was intoxicated at the time of the collision. The plaintiff served a discovery request pursuant to CPLR 3121 (a), alleging that the defendant's physical condition was "in controversy" within the meaning of the statute and demanding production of the defendant's hospital records relating to the accident. The defendant refused to comply with the request and the plaintiff moved for a court order directing compliance. Citing the physician-patient privilege, the Appellate Division affirmed the trial court's denial of the motion. We affirmed, concluding that plaintiff had not demonstrated that defendant's physical condition was "in controversy" within the meaning of CPLR 3121 (a) and that, in any event, the requested information was protected by the physician-patient privilege (CPLR 4504) which defendant had not waived by merely denying the allegations in the complaint.
We acknowledged in Koump that there is a strong presumption in favor of discovery and that "full disclosure of all evidence material and necessary in the prosecution or defense of an action" is ordinarily mandated by CPLR 3101. Consequently, where the mental or physical condition of a party is in controversy, a notice may be served pursuant to CPLR 3121 (a) requiring that the party submit to a medical examination or make available for inspection relevant hospital and medical records. The initial burden of proving that a party's physical condition is "in controversy" is on the party seeking the information and it is only after such an evidentiary showing that discovery may proceed under the statute (Koump v Smith, 25 N.Y.2d, at 300, supra).
Once this preliminary burden is satisfied, however, discovery still may be precluded if the requested information is privileged and thus exempted from disclosure (CPLR 3101 [b]). The statutory scheme, by expressly providing an exception for privileged information, clearly contemplates that certain information, though otherwise material and relevant to a legal dispute, "shall not be obtainable" where it is shown to be privileged (CPLR 3101 [b]). Physician-patient communications, privileged under CPLR 4504, may therefore be shielded from discovery and when it has been established that the requested information is subject to discovery under CPLR 3121 (a), the burden shifts to the person claiming the privilege to assert it by seeking a protective order pursuant to CPLR 3122 (Koump v Smith, 25 N.Y.2d, at 294, supra; see, Bloodgood v Lynch, 293 N.Y. 308, 314). Once the privilege is validly asserted, it must be recognized and the sought-after information may not be disclosed unless it is demonstrated that the privilege has been waived (CPLR 4504 [a]; see, Koump v Smith, 25 N.Y.2d, at 294, supra; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.19; Fisch, N Y Evidence § 554 [2d ed]).
A litigant will be deemed to have waived the privilege when, in bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue (Koump v Smith, 25 N.Y.2d, at 294, supra). As we stated in Koump, this rule is necessary because, notwithstanding New York's strong policy in favor of the privilege, a party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party's claim (id.; see, 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3121.01). Nevertheless, a party does not waive the privilege whenever forced to defend an action in which his or her mental or physical condition is in controversy. In order to effect a waiver, the party must do more than simply deny the allegations in the complaint — he or she must affirmatively assert the condition "either by way of counterclaim or to excuse the conduct complained of by the plaintiff" (Koump v Smith, 25 N.Y.2d, at 294, supra).
The dissent is incorrect in asserting that in Koump this court concluded that the privilege is automatically waived whenever the defendant's physical condition is genuinely in controversy. We decided no such thing, but merely noted quite properly that the question of whether the defendant's physical or mental condition is in controversy is the "primary question" that must be resolved before discovery may proceed under CPLR 3121 (a) (Koump v Smith, 25 N.Y.2d 287, 291). Since the Appellate Division had not addressed this question, we discussed the case law in order to "lay down guidelines for the lower courts" for determining when the "in controversy" requirement of CPLR 3121 (a) will be deemed satisfied (id., at 295). We then distinguished those cases where the requirement was satisfied from the facts of Koump, concluding that the plaintiff in Koump had not met his preliminary burden of demonstrating that the defendant's physical condition was "in controversy" within the meaning of the statute (id., at 300). That we affirmed the denial of discovery without prejudice to plaintiff's making a new application means only that the plaintiff was afforded a second opportunity to satisfy the "in controversy" requirement. Nowhere in the opinion is it stated that the privilege is forfeited where the plaintiff is able to demonstrate that defendant's physical condition is in controversy; in fact, the opinion compels just the opposite conclusion since it expressly states that the privilege is not waived " whenever [emphasis in original] a party defends an action in which his mental or physical condition is in controversy" (id., at 294 [emphasis added]).
IV.Applying these principles to the facts of this case, we conclude that plaintiffs have satisfied their threshold burden of demonstrating that defendant's physical condition at the time of the accident is in controversy. The affidavits submitted in support of their discovery motion indicate that defendant had been drinking rather heavily over a seven-hour period leading up to the accident and there is at least some suggestion, albeit hearsay, that she may have been "shut off" by the bartender at Eddie's Conklin Inn because of her intoxicated condition. Moreover, it is a matter of public record, alluded to in the affidavit of plaintiffs' attorney, that defendant was convicted of criminally negligent homicide based on the events surrounding the accident. This evidence, we think, is plainly sufficient to demonstrate that defendant's physical condition at the time of the accident is "in controversy" within the meaning of CPLR 3121 (a) and thus potentially subject to discovery.
The information sought by plaintiffs, however — hospital records relating to defendant's physical condition and blood alcohol content following the accident — indisputably falls within the scope of the physician-patient privilege as information acquired by a physician "in attending [defendant] in a professional capacity, and which was necessary to enable him to act in that capacity" (CPLR 4504). Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct (Koump v Smith, 25 N.Y.2d, at 294, supra). Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition. Moreover, the mere fact that the privilege presents an obstacle to plaintiffs' discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed, it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where confidential information is sought in advancing a legal claim that such privilege is intended to operate. Were we to carve out an exception to the privilege whenever it inhibited the fact-finding process, it would quickly become eviscerated.
Plaintiffs' contention that the privilege is somehow forfeited upon their submission of evidentiary facts demonstrating that defendant's physical condition is in controversy is without merit and confuses the amount of evidence required to justify discovery under CPLR 3121 (a) with that required under CPLR 4504 to establish waiver. Plaintiffs may not effect a waiver of the privilege for the simple reason that the privilege is not theirs to waive but rather belongs to the patient (Richardson, Evidence § 434 [Prince 10th ed]; see, Prink v Rockefeller Center, 48 N.Y.2d 309, 314; Iseman v Delmar Medical-Dental Bldg., 113 A.D.2d 276, 278). Once it has been shown that the requested information is privileged under the statute, therefore, only the patient or an authorized representative may waive the privilege and permit disclosure (CPLR 4504 [a]; Richardson, Evidence § 435 [Prince 10th ed]; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.19; Fisch, N Y Evidence § 554 [2d ed]). That has not occurred in this case and thus plaintiffs' discovery motion was properly denied. We have examined plaintiffs' remaining contentions and find them to be without merit.
The dissent challenges the notion that the physician-patient privilege must be personally waived by the patient, apparently contending that the privilege may be waived by operation of law whenever the patient's physical condition is generally "`in controversy'", regardless of whether the patient has affirmatively placed his or her condition in issue (dissenting opn, at 291). This argument is difficult to comprehend, however, since the sine qua non of any evidentiary privilege is that it is personal to, and can only be waived by, the privilege holder (see, e.g., Richardson, Evidence § 418 [attorney-client], § 425 [clergyman-penitent], § 453 [husband-wife]). Were a different rule applied to the physician-patient privilege, the privilege would become meaningless since confidential communications between physicians and patients would be at the mercy of third parties having no direct stake in that confidential relationship. And while certain exceptions to the privilege have been recognized by the Legislature and the courts (see, CPLR 4504 [b] [dentist required to disclose information for purpose of identification and where patient under age of 16 has been the victim of a crime]; Public Health Law § 3373 [privilege inapplicable for purposes of statute governing controlled substances]; see generally, Fisch, N Y Evidence, §§ 547, 548, 549 [2d ed]; 5 Weinstein-Korn-Miller, N Y Civ Prac ¶¶ 4504.11, 4504.12, 4504.13, 4504.13a), this is not to be confused with the forced waiver of the privilege once it has been validly asserted.
Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the negative.
Judges SIMONS, TITONE and HANCOCK, JR., concur with Judge ALEXANDER; Judge BELLACOSA dissents and votes to reverse in a separate opinion in which Chief Judge WACHTLER and Judge KAYE concur.
Order affirmed, with costs, and certified question answered in the negative.
I respectfully disagree with the majority because in my view the rule in Koump v Smith ( 25 N.Y.2d 287) is misapplied and then extended in a direction antithetical to that which was intended. Defendant is thus allowed to wield the physician-patient privilege against the truth-finding process in a case in which the remedial statutory protection (CPLR 4504 [a]) and in which sound policy and interpretation compel the opposite result (compare, Vehicle and Traffic Law § 1194 [a]; former § 1194-a  [a]; § 1194  [b] ). I would grant disclosure of defendant's hospital record of a blood test showing an alcohol content of .27 — almost three times the legal limit (Vehicle and Traffic Law § 1192). My vote is to reverse the denial in the lower courts of the plaintiffs' motion.
Tonia Dillenbeck was killed and her 10-year-old son, one of the plaintiffs here, was seriously injured when the vehicle in which they were riding was hit by one driven by defendant Hess. Hess was injured, hospitalized, and a blood alcohol test was administered. In a criminal action arising from this same incident, the defendant was convicted of criminally negligent homicide. Plaintiffs sue for wrongful death and personal injuries, and contend that Hess' intoxication caused the accident.
Hess pleaded in her answer by general denial that she was not intoxicated, and affirmatively asserted comparative negligence and plaintiffs' failure to wear seat belts. Also, during the examination before trial, she claimed to have no memory of the accident or its attendant details.
Plaintiffs formally moved to compel defendant Hess to execute authorization for them to obtain a copy of Hess' hospital records pertaining to her blood alcohol content. Defendant opposed discovery, arguing that she enjoyed a physician-patient privilege in this respect. The Appellate Division affirmed the denial of discovery, holding that when defendant driver simply denies being intoxicated, the physician-patient privilege prevails. This court affirms, principally relying on Koump v Smith ( 25 N.Y.2d 287, supra) and its interpretation of CPLR 4504.
I disagree with what I perceive to be the majority's holding: (1) that the party enjoying the physician-patient privilege must personally waive it in the sense that a waiver cannot be effected by operation of law through a party's conduct, and (2) that it is defendant alone who subjectively determines whether her own physical condition is "in controversy" and who thus controls whether plaintiff may gain access to vital evidence. The practical consequence of the majority's holding is to deny drunk driving accident victims access to blood alcohol test results and to allow defendant to conceal key scientific evidence from plaintiffs and from the adjudication process.
The physician-patient privilege is a statutory shield overturning the common-law rule generally allowing disclosure of otherwise admissible communications to a physician, even those made in the strictest confidence. The remedial statute (CPLR 4504) is premised on the perceived necessity of encouraging uninhibited communications by patients to physicians, presumably producing better medical advice and treatment. The underlying rationale for this rule has more lately been questioned and criticized by commentators for conflicting with New York's modern, liberal disclosure scheme under CPLR 3101 (a) and 3121, and for impeding the courts' primary truth-seeking function (see, 5 Weinstein-Korn-Miller, N Y Civ Prac ¶ 4504.02; McLaughlin, 1970 Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 7B, 1989 Supp Pamph, CPLR 4504, at 319; 8 Wigmore, Evidence § 2380a [McNaughton rev 1961]; McCormick, Evidence § 108). Misuse of the privilege prompted this observation: "Actually the privilege is utilized as a tactical maneuver, and is seldom invoked for any purpose other than to suppress facts that are injurious to the legal position of the person who seeks its protection. Rarely is it used to guard a secret" (Fisch, N Y Evidence § 557 [2d ed]). For these reasons, the modern approach is to apply the privilege restrictively rather than expansively (see, Williams v Roosevelt Hosp., 66 N.Y.2d 391, 396; see also, 8 Wigmore, Evidence § 2380a, at 832 [McNaughton rev 1961]; see also, N Y Proposed Code of Evidence § 509 [d]  [providing disclosure of privileged communications in the generalized interest of justice]; compare, Matter of Knight-Ridder Broadcasting v Greenberg, 70 N.Y.2d 151, 159).
The privilege and its underlying policy are also put in significant competition with statutory developments in the Vehicle and Traffic Law designed to address the great public concern and interest in dealing with drunk drivers. The law in this State now is that any person who operates a motor vehicle shall be deemed to have given consent to a chemical test where there are reasonable grounds to believe that the driver's ability was impaired by alcohol, provided the test is administered by or at the direction of a police officer (Vehicle and Traffic Law § 1194 [a]). Furthermore, submission to a chemical test is compulsory when a person has been killed or seriously injured by a drunk driver (Vehicle and Traffic Law § 1194 [b] ). Holding that a person has a privilege of this kind in an area regarding information that the State explicitly elsewhere requires to be disclosed creates an unnecessary inconsistency in statutory application.
Koump v Smith ( 25 N.Y.2d 287, supra), with appropriate consideration to all its many facets, does not, in my view, compel the result reached by the majority. The drivers of two automobiles were hospitalized following a head-on collision. Blood tests were taken and in a personal injury action the plaintiff sought the results of the defendant's blood test, contending that it would confirm plaintiff's allegation that defendant had been intoxicated. Defendant's answer simply denied the allegation of intoxication; he raised no counterclaim and offered no explanation. The only support for plaintiff's motion was an affidavit by plaintiff's attorney which was based on double hearsay. We acknowledged that while a plaintiff waives the physician-patient privilege by commencing an action which puts plaintiff's own physical condition in issue, a defendant may not be deemed similarly or automatically to have waived the privilege simply by defending an action for personal injury. To effect a waiver of defendant's privilege by operation of law based on defendant's own actions, Koump teaches that a defendant must "affirmatively assert the condition either by way of counterclaim or to excuse the conduct complained of by the plaintiff" ( 25 N.Y.2d, at 294, supra [emphasis added]). In other words, the person asserting the privilege cannot have it both ways and especially may not use the shield as a sword.
But the court's analysis did not end there; the court went on to explain what is needed to place physical condition in controversy. The court exemplified with cases in which defendant's pleadings had not placed physical condition "in controversy", but in which the evidentiary showing nevertheless put the condition genuinely "in controversy" (see, Koump v Smith, at 295-298, supra). The court then differentiated the case before it from those cases: "In each of those cases the defendant's physical condition was in controversy, either because he affirmatively asserted it in a pleading or at an examination before trial or because he had undergone a prior physical examination which substantiated or gave credence to the allegations of the plaintiff's complaint. In the instant case, however, we have only the plaintiff's pleading and the statement in the attorney's affidavit that the police report says that the policeman said that Dr. Sperling said that the defendant appeared intoxicated — a double link of hearsay. In our view, although this lends some credence to plaintiff's complaint, it is not sufficient to put defendant's physical condition in controversy within the meaning of the statute. As a matter of policy, something more must be required" (id., at 299).
The court then mapped out how to satisfy the burden. "The affidavits must contain evidentiary matter and not mere conclusory statements. Because the affidavit must be sworn to by a person having knowledge of the facts, an affidavit by an attorney should be disregarded unless he happens to have personal knowledge of the facts" (id., at 300). Most significantly, the Koump court affirmed the denial of discovery "without prejudice to a new application upon a proper showing".
As Judge Bergan's concurring opinion tersely sums it all up, the holding in Koump cannot be interpreted to mean that "the assertion of a physical cause for an accident, and the denial of the assertion by a defendant, can never constitute a sufficient basis for inspecting defendant's hospital records; because, if this were its holding, it would have flatly cut off any possible inspection on this record and not allowed renewal of the application" (id., at 300 [Bergan, J., concurring]; see also, Prink v Rockefeller Center, 48 N.Y.2d 309, 316; Barker, 1970 Survey of New York Law: Evidence, 22 Syracuse L Rev 99, 109-110).
If a party comes forward with unequivocal proof of the other party's physical condition at the time of the accident, the condition should be deemed "in controversy" and evidence relating to it subject to discovery. When a party puts the other party's condition "in controversy" by such evidence and when a party is clearly not on a "fishing expedition", the interest of letting truth triumph outweighs the defendant's desire to cloak highly relevant scientific evidence in secrecy. This is consistent with the words of the statute, with the intent of the statutory protection, with a realistic interpretation of Koump, with sound construction of remedial statutes in derogation of the common law, and with present-day legislative attitudes reflected in related statutory developments. This should be especially so when that result and analysis also coincide with the general modern trend towards open and full reciprocal discovery and with fundamental fairness between the parties.
In Williams v Roosevelt Hosp. ( 66 N.Y.2d 391, supra), our court's own most recent articulation in this general area, this very privilege was accorded a narrow interpretation, holding it applicable to confidential communications only and "not the mere facts and incidents of a person's medical history" (id., at 396; see also, Matter of Knight-Ridder Broadcasting v Greenberg, 70 N.Y.2d 151, supra). Arguably, though it is not necessary to decide in this case, the blood alcohol content test results may not even be a "communication" under Williams because it is neither confidential nor intended to be secreted within the physician-patient privilege in this narrow context.
In sum, plaintiffs' motion for discovery in this case should be granted for several interrelated reasons. First, unlike the defendant in Koump who simply denied plaintiff's allegation of intoxication, defendant Hess has gone far beyond that in this case — she claims no memory of the event and has affirmatively pleaded comparative negligence and plaintiffs' failure to wear seat belts. In so doing, defendant Hess has sought in whole and in part to "excuse" her conduct. Thus, in this context, defendant Hess should be charged by operation of law with a waiver of the privilege by affirmatively placing her own physical condition "in controversy" (Koump v Smith, supra, at 294).
Second, plaintiffs' proffer of evidence supporting their discovery motion also satisfies Koump's standard that plaintiff can bring about a legal waiver of defendant's privilege by an evidentiary showing that defendant's condition is genuinely "in controversy" (id., at 300). Plaintiff submitted affidavits from persons swearing on their own direct knowledge that they observed defendant Hess consume 9 or 10 alcoholic drinks in the hours just prior to the accident. Plaintiff has also established through submission of the sentencing minutes from defendant's conviction for criminally negligent homicide that a blood alcohol test was conducted at the hospital and that the test reveals that defendant was highly and legally intoxicated at the time of the accident.
Third, it cannot be said that this defendant has a legally cognizable privilege expectation with respect to her blood alcohol test results, especially in view of the Legislature's present-day policies and statutory expressions in this area.
Taken together, these satisfactions by plaintiffs and by defendant of Koump's prerequisites and adherence to sound statutory construction and the latest policy reflections from the Legislature all lead to only one conclusion — reversal in favor of plaintiffs.
To allow defendant to sweep scientific evidence under the rug of a physician-patient privilege in this case is to allow her to hide the truth, without legal justification or good purpose.