Relates to waiver of privileged confidential information

BILL NUMBER:S5074A

Title of bill

An act to amend the civil practice law and rules, in relation to waiver of privileged confidential information

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Civil Practice.

CPLR 4504 creates an evidentiary privilege governing communications between a patient and his or her physician, as well as other named persons attending a patient in a professional capacity, regarding information necessary to enable that physician or other named person to act in that professional capacity. In recent years, court decisions have made clear that, under this statute, the results of any tests administered following a motor vehicle accident which reveal the alcohol or drug contents in the body of the operator of a motor vehicle are not to be discoverable nor admitted into evidence in a civil action unless the test is administered at the direction of a public officer or by court order. (See, Dillenbeck v. Hess, 73 N.Y.2d 278 (1989); Neferis v. DeStefano, 265 A.D.2d (2d Dept. 1999); Fox v. Marshall, 2012 NY Slip Op. 00328 (2d Dept., Jan. 2012); NYS Vehicle and Traffic Law § 1194).

We believe that the Legislature must address the evidentiary problem unforeseen at the time the privilege was enacted. This measure would do this. It would enact a waiver of the privilege by an operator of a motor vehicle in this state who has been in a motor vehicle accident upon whom medical tests were administered following the accident, solely as to the results of the tests administered where the tests reveal the contents of alcohol or drugs in the driver's body and for the exclusive purpose of use in a civil action.

In this regard, we agree with the views expressed by the dissent in Dillenbeck that such an amendment would further the strong public policy of this State to prevent the driving of a motor vehicle while impaired by alcohol or drugs.

This measure is intentionally narrow and does not infringe upon the confidentiality between a patient and his or her health care provider. The waiver, does not include notes or observations made or recorded in a patient's chart nor a patient's statements made in the emergency room or elsewhere nor any other test results nor any written or verbal communication between the patient and his or her healthcare professional. This permits the trial court to allow the discovery of and admission into evidence of the results of a test taken after a motor vehicle accident revealing the alcohol or drug contents in the motor vehicle operator's body.

This measure would have no fiscal impact on the State. It would take effect on the first day of January next succeeding the date on which it shall have become law and shall apply to any action commenced on or after such effective date.

2013 Legislative History: OCA 2013-28 Senate 4074 (Sen. Bonacic) (ref to Judiciary)

2012 Legislative History: Senate 7570 (Sen. Bonacic) (ref to Judiciary) Assembly 10344 (M. of A. Weinstein) (ref to Codes)