Relates to the mental condition of a victim

1 Co-sponsor

• David Carlucci

Title of bill

An act to amend the civil practice law and rules, in relation to the mental condition of a victim

Purpose

To allow prosecutors to obtain medical records of mentally impaired victims of financial exploitation, without requiring a waiver from those very victims.

Summary of provisions

Section 1 amends § 4504 of the Civil Practice Law to add a new subdivision (e) to allow prosecutors to obtain medical records of mentally impaired victims of financial exploitation, without requiring a waiver from those very victims.

Section 2 states that this act shall take effect immediately.

Justification

An elderly victim's medical records may be required to prove the existence of a mental disability that demonstrates the incapacity to consent, and are certainly crucial evidence in that regard. In some areas of New York State health care providers produce medical records in response to subpoenas duces tecurn issued by grand juries. In others, however, providers refuse to comply with subpoenas on the grounds that doing so would violate the physician-patient privilege codified in CPLR 4504. Although victims in other types of cases routinely waive their privilege so that prosecutors can obtain crucial medical records, in the case of a mentally impaired victim that may be impossible. Such a victim, of course, cannot consent to waiving her medical privilege any more than she can consent to having her property taken. As a result, law enforcement efforts against elder fraud have suffered.

As the Court of Appeals has recognized, "the purpose of the privilege is to protect the patient, not to shield the criminal" (Matter of Grand Jury Proceedings (Doe), 56 N.Y.2d 348, 352-53 (1982)). For that reason, it is plainly in the public interest to allow courts to order the production of the records of mentally-impaired victims. Because the privilege is a creature of statute, such change can only come from the Legislature (Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 134 (1983)). The bill would amend CPLR 4504 to allow a prosecutor to obtain medical records with a subpoena, endorsed by the court, based upon a showing that the patient suffers from a mental disability, and that the patient has been the victim of a crime.

This proposal would not run afoul of the Health Insurance Portability and Accountability Act ("HIPAA"), The HIPAA privacy rule makes exceptions for judicial and administrative proceedings, and law enforcement purposes.

Legislative history

S.7179 of 2014

Fiscal implications

None.

Effective date

This act shall take effect immediately