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New York Court Discusses Waiver of Doctor Patient Privledge


In 1958, a man was involved in a vicious fight with another man. It ended with the assailant pummeling the second man to the point where he was hospitalized. Some days following his admittance into the hospital, the man victim died. The assailant was charged with homicide for the death of the victim. However, the assailant’s defense team posed the issue that the assailant had not actually caused the death of the victim. They contended that the victim had died of natural causes as the result of medical malpractice at the hospital. Their contention being that the assailant could not be charged with any crime more serious than assault because the assault did not directly lead to the death of the victim.

The courts found that this was a compelling argument. Oddly, it was not the first time that an argument of this nature had been presented to the courts in a case of a physical assault. The courts looked back at case law in an attempt to determine how to assess the validity of the claim that was presented in this case. They discovered a case of a woman named Lemon who had poisoned her husband. He was hospitalized because of the poison that she had given him in an attempt to kill him when he died of complications several weeks later. Her defense was that the poison had not killed her husband, he had died as a result of medical malpractice at the hospital and that it was entirely beyond her control. Her contention being that she could not be charged with killing him if the doctors were the ones who actually caused his death. The courts in that case found that the man had died as a direct result of her actions in poisoning him. They determined that if she had not poisoned him, he would not have been in the hospital. If he had not been in the hospital, the doctor’s would not have treated him incorrectly. If the doctors had not treated him incorrectly, he would not have died. Therefore, the courts in that case determined that the woman had been the direct cause of the actions that transpired that culminated in the death of her husband. This created a framework for the justices in the current case to evaluate the necessary elements that would indicate that the crime was or was not a direct cause of the person’s death.

If the prosecution can show that the assault was the direct cause of the man’s death, then the assailant can be convicted of his murder. If it was not, then the court will have to determine that the fact that the man died in the hospital is an unrelated coincidence that was not a direct result of the actions that the assailant took when he attacked him. Since the man died within a matter of days, it would seem that the attack was a direct causal factor to his death. However, the court needed to evaluate the actual medical records themselves to make an educated determination. At this time in history, the courts had not settled the problems that are created when medical records are requested to be viewed in a court of law. The sanctity of the doctor patient relationship can complicate the ability of the courts to obtain the records that are relevant to the case. The courts have ruled that it is not appropriate to waive the doctor and patient privilege at the request of the assailant in a case. Consequently, it is also not appropriate to waive the doctor and patient privilege at the request of the prosecutor. The only person who is able to waive the doctor and patient privilege is the patient.

In this case, the patient is dead which further complicates the legal question of waiving the doctor and patient privilege. In cases where the patient is still alive, but chooses to not waive the privilege, the courts have ruled that it is not consistent with the human rights that are provided in this country to force the patient to release their medical records against the privilege. Again, the justices turned to case law to evaluate their options.

They reviewed a case where a woman was charged with obtaining an abortion, which was illegal at that time in New York. The prosecutor issued a subpoena for the production of documents to obtain the medical records that would prove their case. The woman refused to waive her right to have her personal medical records protected under the doctor and patient privilege. The prosecutor stated that the only two people who were involved in the abortion were the doctor and the patient. He maintained that if the court was not able to waive the privilege between these two co-defendants, that the ability to prove that they had contrived together to end the life of her unborn baby would be difficult if not completely impossible to prove. The courts agreed with the prosecutor, but also agreed with the woman and the doctor. They determined that if the prosecutor was not able to make his case without the records, then the records could only prove to humiliate the woman. The court’s contention at the time was that the allegation of abortion was so horrendous to the general populace at that time, that wrongly charging the woman could only serve to damage her reputation beyond repair. If the prosecutor was wrong, the woman would still be labeled a fallen woman. Her reputation would be beyond repair. The court determined that it would not be appropriate to allow the prosecutor to force the woman to reveal her personal gynecological medical records to be aired in an open courtroom.

Opinions about the social stigma associated with premarital sex and abortion have changed dramatically in recent years. However, the doctor and patient privilege is second only to the attorney and his client. In the case at hand, the patient is dead. His wife is resistant to waiving his right to medical records. The court will also have to evaluate the relationship created when the patient dies. The courts have determined that the only person who is able to waive the doctor and patient privilege is the patient. But if the patient is dead, is a waiver necessary. The court reviewed this concept and determined that there is no doctor and patient privilege between a deceased person and a medical examiner who conducts an autopsy. An autopsy should be sufficient to determine a cause of death without having to obtain the personal medical records of the decedent.

In this case, the man who was attacked and died several days later in the hospital was autopsied. His autopsy revealed that he had died of natural causes that were not related to the assault that the assailant was charged with. Therefore, the court determined that the attack was not a causal element in the decedent’s death. The indictment for murder was dismissed and a lesser assault indictment was drawn.

At Stephen Bilkis & Associates with its criminal Lawyers, have convenient offices throughout New York and Metropolitan area. Our medical malpractice lawyers can provide you with advice to guide you through difficult situations. Without a wrongful death attorney, you could lose precious compensation to help your family.

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