Preliminary Statement


This brief is submitted by the proposed amici New York State Psychiatric Association, Inc. and American Psychoanalytic Association with regard to two questions apparently raised in this proceeding that involve the confidentiality of medical records pertaining to defendant Robert Bierenbaum and statements made by the defendant to psychiatrists Michael Stone, M.D., Stanley Bone, M.D., and Carl Kleban, M.D., during treatment and consultation sessions with those psychiatrists.

The two questions are as follows:

1) Was the psychotherapist-patient privilege under CPLR Section 4504 barring disclosure of all medical records and statements made by the defendant to Drs. Stone, Bone and Kleban in their professional relationships waived for any and all purposes because the defendant discussed his marital problems, medical care and/or marital counseling with third parties?

2) Was the psychotherapist-patient privilege under CPLR Section 4504 barring disclosure of all medical records and statements made by the defendant to Drs. Stone, Bone and Kleban in their professional relationships waived or otherwise overriden for any and all purposes because Dr. Stone gave warnings to the defendant's wife and parents during or after his treatment and consultation with the defendant?

Proposed Amici

The New York State Psychiatric Association, Inc., (NYSPA), is the statewide medical specialty society representing 5,000 psychiatrists throughout New York State and has an interest in promoting research and treatment for the benefit of people with mental disabilities. NYSPA has participated as amicus curiae in several cases involving mental health issues, including T.D. v. The New York State Office of Mental Health, 228 A.D.2d 95 (1st Dept. 1996), appeal dismissed, 91 N.Y.2d 860 (1997) (concerning challenge to regulations governing scientific research); In re Grand Jury Subpoena Duces Tecum dated December 14, 1984, 69 N.Y.2d 232 (1987) (concerning the scope of the psychiatrist-patient privilege in Medicaid fraud investigations), Matter of Guardianship of Alexander L., 112 A.D.2d 902 (1st Dept. 1985) (involving the proper role of the attorney for the parent in a case involving termination of parental rights with respect to the psychiatric examination of the child), and Savastano v. Nurnberg, 152 A.D.2d 290 (2nd Dept. 1989), aff'd, 77 N.Y.2d 300 (1991) (concerning whether judicial hearings were necessary in the transfer of patients from short-term to long-term psychiatric facilities.)

The American Psychoanalytic Association (APsaA) is a national professional organization of psychoanalysts practicing in the United States. ApsaA is comprised of 40 affiliate societies and 29 psychoanalytic training institutes and has approximately 3,000 members. ApsaA is also a regional association of the International Psychoanalytic Association. ApsaA has participated as an amicus curiae in Jaffee v. Redmond, 518 U.S. 1 (1996), the landmark case regarding the psychotherapist-patient privilege.

The issues involved are of considerable interest to psychiatrists and psychoanalysts since these issues directly affect the duty of confidentiality and the expectation of patients that confidences related to psychiatrists and psychoanalysts in their professional capacity will remain confidential and privileged except in certain narrow and limited circumstances.

Relevant Facts

The issues discussed in this brief are framed by positions taken by the District Attorney in previous proceedings.

Previously, the District Attorney issued a subpoena requiring Stanley Bone, M.D., the defendant's psychiatrist, to testify before the Grand Jury and produce certain records pertaining to his treatment of the defendant. Dr. Bone sought to quash the subpoena. In response to Dr. Bone's motion, the District Attorney argued that the defendant had waived his psychotherapist-patient privilege with Dr. Bone because the defendant had discussed his marital difficulties and marital counseling with third parties.(1) See Affirmation of Assistant District Attorney Daniel L. Bibb, dated September 1, 1999.

Michael Stone, M.D., another psychiatrist who treated the defendant, has also been called to testify at defendant's trial. From the record of proceedings before this Court held on August 1, 2000, it appears that after treating the defendant, Dr. Stone gave warnings to the defendant's wife and parents in 1983 to communicate - as some jurisdictions would not only permit, but require (see Tarasoff v. Board of Regents, 529 P.2d 553 (Cal. 1974) and 551 P.2d 334 (Cal. 1976) ) - that defendant might pose a danger. The District Attorney seems to argue that the warnings constituted a waiver, or abrogation, of the defendant's psychotherapist-patient privilege with regard to all of his psychiatrists for all of his communications with those psychiatrists for all time. See Proceedings, August 1, 2000 at 8, see also Defendant's Pre-Hearing Memorandum of Law (anticipating argument from the District Attorney that Dr. Stone's warning abrogates psychotherapist-patient privilege.)

Consequently, NYSPA and APsaA, as amici curiae, submit this brief on the issues outlined above. In summary, it is the position of the amici that the defendant's communications with third parties about his marital difficulties and marital counseling do not constitute a waiver of his psychotherapist-patient privilege and that Dr. Stone's warnings given 17 years ago do not waive or abrogate the defendant's physician-patient privilege at all, much less on all communications with all physicians for all time, where there is no current threat of imminent harm.



The psychotherapist-patient privilege precludes a physician from revealing "any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." CPLR Section 4504(a); see People v. Sinski, 88 N.Y.2d 487, 491 (1996). It protects both communications and medical records. Williams v. Roosevelt Hospital, 66 N.Y.2d 391 (1985). The privilege is personal to the patient but may be asserted by the treating physician or custodian of the patient's records in the absence of a waiver by the patient. Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452 (1983).

The rationale of the privilege is to encourage uninhibited communications between physicians and their patients for the purpose of securing appropriate treatment. In the Matter of a Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983). By guaranteeing confidentiality, the privilege shields patients from humiliation, embarrassment and disgrace. Farrow v. Allen, 194 A.D.2d 40, 43 (1st Dept. 1993). Medical treatment rendered by mental health professionals particularly requires confidentiality "because the very nature of psychiatric treatment renders privacy essential." Id.

The psychotherapist-patient privilege is accorded "a broad and liberal construction to carry out its policy." With this in mind, courts have upheld its application during Grand Jury proceedings and criminal trials. See People v. Sinski, 88 N.Y.2d at 492. Thus, the psychotherapist-patient privilege has properly been asserted by physicians for the protection of patients suspected of homicide. See In the Matter of a Grand Jury Investigation of Onondaga County, 59 N.Y.2d at 134 (in the absence of legislative intent to the contrary, physician-patient privilege not overridden in homicide case.)

The District Attorney is seeking medical records and testimony from psychiatrists relating to their consultations with and treatment of the defendant. The sole purpose of these communications was to enable the psychiatrists to render effective medical treatment to the defendant, or to determine what treatment (if any) was needed and from whom it most appropriately could be received. Because there is no evidence that the defendant has effected a waiver, the medical records and testimony sought by the District Attorney are privileged.

The District Attorney has taken the position that the defendant waived his physician-patient privilege because he allegedly informed several third parties of his marital difficulties and that he was seeking therapy related to his marital problems. That position is supported in neither reason nor precedent. The fact that defendant was receiving treatment is not privileged in the first place, so its disclosure to third parties cannot waive anything. And the disclosure to third parties of the general reason for the physician visits - marital issues - cannot possibly waive the privilege as to the detailed communications during those visits.

It is well settled that the fact of treatment, i.e., the fact that a certain physician provided medical care to a certain patient, is not privileged. Klein v. Levin, 242 A.D.2d 682 (2d Dept. 1997). Therefore, the disclosure by a patient to third parties of the fact of treatment does not constitute a waiver of the physician-patient privilege.

In the instant case, there is no evidence that the defendant divulged to third parties anything more than the fact that he was receiving treatment from therapists and the existence of his marital problems. Those facts are nothing more than the facts of treatment which are not privileged. There is no evidence that the defendant disclosed to third parties facts about the nature of his treatment. Consequently, as there is no evidence that the defendant made any statements that waived his privilege, the privilege was not waived.(2)

Importantly, this is not a case where a patient is trying to use the privilege not as a shield but to sharpen his own sword. That situation arises when a patient makes a selective disclosure for his own advantage and then tries to bar the more complete disclosure that is necessary in order to ensure that his selection of information is not misleading. In other words, there is no basis in this case for finding waiver in the need to ensure fairness and completeness after a partial disclosure is made.

With no such justification present, a finding of waiver here would have ludicrously broad and unjustified consequences. Individuals who see physicians or other therapists for marital problems, and do not hide from friends or relatives the fact that they are doing so, would lose the protection of the privilege as to all the details disclosed in the therapy. More generally, individuals who see physicians or therapists and mention the general reason to some friend or relative - work related problems, family problems, etc. - would suddenly lose the cloak of secrecy surrounding all the details of those problems. The difference between disclosing general topics (e.g., marital problems) and disclosing details of communications (e.g., adultery, impotence, etc.) is gargantuan. With fewer and fewer individuals ashamed to admit (to friends or relatives) the fact of therapy and even some general reason, there would be few cases where any privilege would survive under the District Attorney's rule.



The District Attorney appears to argue that Dr. Stone's 1983 warnings to the defendant's wife and parents after his treatment and consultations with the defendant waived or overrode, for any and all purposes the defendant's psychotherapist-patient privilege under CPLR Section 4504. That section states the New York legislature's rule barring disclosure of all medical records and statements made by the defendant to any physician in a professional relationship. Amici submit that the privilege survives in this case for undisclosed communications. First, the privilege applies to "consultations" as well as "treatment." Second, Dr. Stone's actions, which logically cannot be a waiver (the privilege is not his to waive), do not justify an abrogation of the statutory privilege: the danger that justified Dr. Stone's limited 1983 disclosure has ceased, and with no present danger, the current disclosure of psychiatrist-patient communications serves no beneficial purpose and can only serve to discourage patients from seeking assistance from psychiatrists and communicating their problems. Third, there does not appear to be a basis for finding that defendant, to whom the privilege belongs and who is not making unfair use of selective disclosures, has waived it. Therefore, as the disclosure of the defendant's physician-patient communications serves no salutary purpose at this time, this Court should honor the defendant's right to privacy of his physician-patient communications and records and preclude disclosure of those communications and records during the upcoming trial.

A. Consultations.

The District Attorney appears to argue that even if communications in the course of treatment are privileged, communications in the course of "consultations" that do not involve treatment are not privileged. There is no case law to support that view, and the Court of Appeals has held that "in determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive." People v. Decina, 2 N.Y.2d 133, 142 (1956). See also, Oregon v. Miller, 709 P.2d 225, 234 (1985) (discussions between psychotherapist and patient during consultation privileged).

Drawing the distinction urged by the District Attorney, moreover, makes no sense in terms of the legislative policy. Confidentiality is as much needed for disclosures made in order to determine whether treatment is needed, what kind of treatment is in order, and from whom it would best be received, as for disclosures made in the course of treatment. Details may have to be disclosed in a consultation to lead to a referral to a specialist for treatment. The District Attorney's position would deter consultations and stifle communications needed to get to the stage of treatment, and to arrive at the best available course of treatment, all directly contrary to the policy behind the New York legislature's creation of a privilege

B. Abrogation.

In general, a physician's voluntary disclosures of records and communications obtained during the physician-patient relationship cannot constitute a waiver making otherwise privileged statements admissible. Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 314-15 (1979). After all, the privilege belongs to the patient, not to the physician, and only the patient can waive it. Thus, statements made by Dr. Stone about the defendant to third parties cannot waive the defendant's physician-patient privilege as only the defendant had the right to waive that privilege.

If Dr. Stone's 1983 warnings are relevant, therefore, it could only be because they somehow justify an abrogation, or override, of the statutory privilege that plainly covers the still-secret communications made within the relationship with defendant. But no such abrogation can be found, for two reasons. Even without any weighing or balancing, the dispositive fact is that the rationale justifying the 1983 warnings simply does not extend to further disclosures today. And, in any event, any override could not be justified given the well-recognized strength of the need for the privilege.

1. Necessarily starting from the premise that the 1983 warnings were justified (if not, the unjustified disclosures could hardly justify still further disclosures), the District Attorney presumably views the justification for those warnings as being the overriding need to protect known individuals from imminent danger. That justification presumably supplied a defense for Dr. Stone if defendant had tried to enforce Dr. Stone's duty of confidentiality towards him. Cf. Jaffee v. Redmond, 518 U.S. 1, 18, n. 19 (1996). Conceivably, that justification would support not only Dr. Stone's right, but even a duty on his part to have given the warnings. (See, Tarasoff v. Board of Regents, 529 P.2d 553 (Cal. 1974) and 551 P.2d 334 (Cal. 1976)), though the existence of such a duty has not been settled in New York law. Cf. MacDonald v. Clinger, 84 A.D.2d 482 (4th Dept. 1982).(3) What that justification does not do, however, is justify disclosures that cannot any longer serve the purpose of protecting known individuals from imminent dangers.

Disclosure of the long-ago communications at issue in this case cannot today provide that protection and, thus, is simply outside the rationale that must justify the original 1983 warnings. (The District Attorney does not allege or show facts demonstrating that the defendant poses any threat of imminent harm to anyone at this time.) Even if this were a case of pure common law, therefore, this would be a classic case for application of the common law maxim that a rule (here permitted disclosure by the physician to warn of imminent danger to identifiable individuals) extends no further than the reason which supports it. See Lockhard v. Fretwell, 506 U.S. 364, 373 (1993); Dewitt v. Barley and Schoonmaker, 9 N.Y. 371, 375 (1853) ("Cessante ratione legis, cessat et ipsa lex"). That principle is all the stronger in this case. Any abrogation of the privilege in this case is an overriding of an otherwise-clear statutory command.

2. Refusing to broaden the effect of the 1983 warnings beyond its rationale is hardly a matter of formalism. It is necessary to respect the strong policies behind the privilege. The purpose of the physician-patient privilege, as discussed above, is to encourage uninhibited communications between physicians and their patients for the purpose of securing appropriate treatment and to shield patients from humiliation, embarrassment and disgrace. In the Matter of a Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130 (1983).

The need to maintain confidentiality in psychotherapy has been recognized by many courts in New York. In 1933, the New York Court of Appeals in Steinberg v. New York Life Ins. Co., 263 N.Y. 45 (1933) set forth the purposes of Section 352 of the Civil Practice Act,(4) the antecedent statute to CPLR Section 4504:

"Its purpose is to protect those who are required to consult physicians from the disclosure of secrets imparted to them, to protect the relationship of patient and physician, and to prevent physicians from disclosing information which might result in humiliation, embarrassment, or disgrace to patients."

The duty of confidentiality in psychiatric care has led to the creation of a cause of action for unauthorized release of confidential medical information. In Doe v. Roe, 93 Misc.2d 200 (Sup Ct. NY. Co. 1977), this Court upheld a lawsuit brought by former patients against a psychiatrist who published a book that reported the patients' thoughts, feelings, emotions and fantasies of the patients. The court articulated the importance of confidentiality as follows:

"I too find that a physician who enters into an agreement with a patient to provide medical attention impliedly covenants to keep in confidence all disclosures made by the patient concerning the patient's physical or mental condition as well as all matters discovered by the physician in the course of treatment. This is particularly and necessarily true of the psychiatric relationship, for in the dynamics of psychotherapy '(t)he patient is called upon to discuss in a candid and frank manner person material of the most intimate and disturbing nature.... He is expected to bring up all manner of socially unacceptable instincts and urges, immature wishes, perverse sexual thoughts- in short the unspeakable, the

unthinkable, the repressed. To speak of such things to another human being requires an atmosphere of unusual trust, confidence and tolerance. Patients can be helped only if they can form a trusting relationship with a psychiatrist."

Id., quoting Heller, Some Comments to Lawyers on the Practice of Psychiatry, 30 Temple L.R. 401, 405-06 (1975).(5)

While many cases have elucidated the critical role of confidentiality in the provision of psychiatric care, perhaps none have done so more succinctly than the decision of the United States Court of Appeals for the D.C. Circuit in Taylor v. United States, 222 F.2d 389, 401 (D. C. Cir. 1955) (quoting M. Guttmacher & H. Weihofen, Psychiatry and the Law (1952)), which said:

"Many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient's confidence or he cannot help him. The psychiatric patient confides more utterly than anyone else in the world. He exposes to the therapist not only what his words directly express; he lays bare his entire self, his dreams, his fantasies, his sins and his shame. Most patients who undergo psychotherapy know that this is what is expected of them, and they cannot get help except on that condition.... It would be too much to expect them to do so if they knew that all they say- all that the psychiatrists learns from what they say- may be revealed to the whole world from the witness stand."

In its landmark decision Jaffee v. Redmond, 518 U.S. 1, 10 (1996), the United States Supreme Court recognized the psychotherapist-patient privilege in the Federal Rules of Evidence and cited favorably the explanation offered by the Judicial Conference Advisory Committee in 1972:

"Among physicians, the psychiatrist has a special need to maintain confidentiality. His capacity to help his patients is completely dependent upon their willingness and ability to talk freely. This makes it difficult if not impossible for him to function without being able to assure his patient of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule..., there is wide agreement that confidentiality is the sine qua non for successful psychiatric treatment. The relationship may well be likened to that of the priest-penitent or the lawyer-client. Psychiatrists not only explore the very depths of their patients' conscious, but their unconscious feeling and attitudes as well. . . . A threat to secrecy blocks successful treatment.

Advisory Committee's Notes to Proposed Rules, 56 F.R.D. 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June 1960))."

The same principles would also hold true in criminal proceedings. In People v. Stritzinger, 34 Cal.3d 505, 521 (1983), Judge Kaus said that "there is obviously something revolting about the spectacle of a psychotherapist testifying to a patient's confidences in a criminal action in which the patient is a defendant."

Numerous commentators with direct experience have written to confirm the importance of the psychotherapist-patient privilege. See, Beigler, "Psychiatric Confidentiality and the American Legal System: An Ethical Conflict" in Psychiatric Ethics 220, 221 (S. Bloch & P. Chodoff eds. 1981) ("The psychiatrist, by the nature of his work, becomes privy to sensitive information of high potential value to, among others, employers, creditors, legal adversaries, law-enforcement agencies, and insurance carriers. Yet he cannot perform his work properly unless he can assure his patient of real confidentiality"); S. Halleck, Law in the Practice of Psychiatry, 30-31 (1980) ("There is general agreement among all writers in the medical malpractice field that confidentiality is an important right of a patient and that the physician is obligated not to breach the patient's confidences. There is complete agreement that confidentiality is even more important in psychiatric practice... [M]ost doctors, and especially psychiatrists, are very careful in protecting the patient's confidences."); Diamond, "Forensic Psychiatry," in Review of General Psychiatry 467 (3d ed., H. Goldman ed., 1992) ("There is no disagreement that effective psychotherapy requires a trusting relationship between patient and a therapist. The foundation of that trust is the patient's belief that the therapist will maintain the confidentiality of their communications. If the therapist is required by law to breach that confidentiality, therapy becomes difficult, if not impossible, An enforced demand for breach of confidentiality with respect to one patient's communications may affect all patients, for the others may cease to believe- and rightly- that their confidences will be kept confidential," Ciccone, Privilege and Confidentiality: Psychiatric and Legal Considerations, 2 Psychiatric Med. 273 (1985) ("The practice of psychiatry requires the development of a therapeutic alliance between physician and patient; a significant cornerstone to this alliance is the patient's expectation that the psychiatrist will keep secret what is learned about the patient. ... Privacy, an important component of the doctor-patient relationship in all branches of medicine, is of particular relevance to psychiatry because it is necessary that patients share with the psychiatrist their fears, fantasies, and foibles.")

3. Given the express statutory protection of the privilege, and the strong public policy favoring protection of the confidentiality of statements made by patients to psychotherapists, long-ago warnings cannot justify abrogating the privilege covering still-confidential communications when there is no longer an imminent danger to avert by further disclosure. Relevant precedent supports this straightforward conclusion.

MacDonald v. Clinger, 84 A.D.2d 482 (4th Dept. 1982) discussed warnings that breach confidentiality. The court wrote:

"Although public policy favors the confidentiality described herein, there is a countervailing public interest to which it must yield in appropriate circumstances. Thus, where a patient may be a danger to himself or others (see, e.g., Tarasoff v. Regents of University of California, ...), a physician is required to disclose to the extent necessary to protect a threatened interest. 'The protective privilege ends where the public peril begins' (Tarasoff v. Regents of University of California,...)

84 A.D.2d at 487. The MacDonald court then noted that more stringent standards should apply to the disclosure of psychiatric information than other medical information and that disclosure was only justified "whenever there is a danger to the patient, spouse or another person" depending upon "a showing of circumstances and competing interests which support the need to disclose." 84 A.D.2d at 488. Critically, the court made clear that the interest in disclosure, breaching otherwise-vital confidentiality, was limited "to the extent necessary to protect a threatened interest," i.e. the privilege falls only to the extent necessary to protect a person from imminent harm. That position is in accord with the general principle that the privilege is to be limited only to the extent necessary to serve an overriding interest. See Camperlongo v. Blum, 56 N.Y.2d 251, 256 (1982) (Court of Appeals held that exception to privilege for Medicaid-related records was intended to be no broader than necessary for the accomplishment of the purpose of the exception.)

The United States Supreme Court articulated the point in the same way. In Jaffee v. Redmond, 518 U.S. 1, 18, n. 19, the United States Supreme Court noted in upholding the psychotherapist-patient privilege under Federal law:

"Although it would be premature to speculate about most future developments in the federal psychotherapist privilege, we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist."

Thus, abrogation of the privilege is justified only to the extent necessary to avert a danger- a rationale not applicable once the danger has subsided. See Harris, The Dangerous Patient Exception to the Psychotherapist-Patient Privilege: The Tarasoff Duty and the Jaffee Footnote, 74 Wash L. Rev. 33 (1999) (author concludes that the Jaffee footnote should be interpreted as limiting any abrogation of confidentiality caused by a Tarasoff warning to the time period when there was the imminent threat of harm to someone and that the psychiatrist-patient privilege still stands after the threat of harm has abated.)(6)

The position that the psychotherapist-patient privilege should only be abrogated where a serious threat of harm exists was also adopted by the Supreme Court of Oregon in Oregon v. Miller, 709 P.2d 225 (Ore. 1985),(7) where the court held that any duties attached to Tarasoff do not justify the full disclosure of client confidences in open court long after any possible danger has passed. More specifically, the Court held:

"The public interest to be served by notifying the police, in most cases, could be achieved by divulging only that information needed to show why a clear and immediate danger is believed to exist. It would rarely justify the full disclosure of the patient's confidences to the police, and never justify a full disclosure of the patient's confidences in open court, long after any possible danger has passed."

709 P.2d at 236.

Several commentators have taken the same position as the above court cases. See Harris, The Dangerous Patient Exception to the Psychotherapist-Patient Privilege: The Tarasoff Duty and the Jaffee Footnote, 74 Wash. L. Rev. 33, 52, 62, 67 (1999) (author concludes that public policy purposes of the psychotherapist-patient privilege takes precedence over a proceeding to punish the patient, that "society's interest in preventing threatened violence is infinitely greater than its interest in making it easier to prove the commission of a crime already committed," and that the protection of the therapeutic relationship will result in less patient violence and assist in crime prevention); Leong, et. al., The Psychotherapist as Witness for the Prosecution: The Criminalization of Tarasoff, Am. J. Psychiatry 149:8, at 1011, 1014 (Aug. 1992) (concluding that the possibility of being called as witnesses in criminal prosecutions "will likely further distance psychotherapists from treating difficult and dangerous patients" and that while "it may be acceptable to warn potential victims in an attempt to avert tragedy, ... it may well prove intolerable for therapists to assume a prosecutorial role long after the danger has dissipated.")

C. Waiver

There is no apparent basis for finding that defendant actually waived his privilege by (as assumed here) consenting to the warnings given by Dr. Stone in 1983. That consent is irrelevant if, as the District Attorney maintains, the warnings were justified by basic public policy regardless of defendant's consent- so that Dr. Stone had a right or perhaps even a duty, to give them. Certainly, to agree to a disclosure that could not be prevented anyway, as defendant could reasonably assume respecting the 1983 warnings, in no way suggests consent to disclosure of additional communications that can be kept confidential. Moreover, as already, noted, this is not a case of implied waiver. Defendant is not affirmatively making and exploiting a selective disclosure that requires additional disclosure to ensure against unfair and misleading incompleteness.



Dated: Garden City, New York
September 6, 2000
Attorneys for the Amici

Footnotes (Use your browser [back] button to reurnt to your place in the text):

1. The District Attorney has since subpoenaed the records of Carl Kleban, M.D., another psychiatrist who treated the defendant and also seeks Dr. Kleban's appearance at court proceedings. Dr. Kleban has moved to quash the subpoena, and the District Attorney has not yet answered that motion.

2. It is important to distinguish between the concept of "privilege" and the concept of a physician's duty of confidentiality to a patient. A privilege may be asserted to prevent the disclosure of certain communications in a legal proceeding. A party to a legal proceeding has the option to assert or waive the privilege. On the other hand, a physician has a duty of

confidentiality to a patient not to reveal any information about the treatment of a patient, including non-privileged information such as fact of treatment on a certain date; privileged information such as the course of treatment of the patient; and even privileged information where the patient waived the privilege. The duty of confidentiality is not affected by whether the physician may be compelled to testify on the witness stand about the treatment of his patient.

3. Mental Hygiene Law Section 33.16(c)(6) states, with regard to facilities operated or licensed by the New York State Office of Mental Health, that "nothing in this paragraph shall be construed to impose an obligation upon a treating psychiatrist... to release information about a client who presents a serious or imminent danger to an individual."

4. The original medical privilege statute was enacted in 1828 by the New York State Legislature. Of course, the duty of confidentiality ultimately finds its sources in ancient principles of medical ethics first articulated in the Hippocratic oath and later incorporated into the principles of ethics adopted by the medical profession. See American Medical Association Principles of Medical Ethics Section II and American Psychiatric Association Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry Section 4, Ann. 1 (1998) ("Psychiatric records, including even the identification of a person as a patient, must be protected with extreme care. Confidentiality is essential to psychiatric treatment. This is based in part on the special nature of psychiatric therapy as well as on the traditional ethical relationship between physician and patient.)

5. This strong enunciation of the importance of confidentiality in psychiatric care was cited favorably by the Appellate Division, Fourth Department in MacDonald v. Clinger, 84 A.D.2d 482, 486 (4th Dept. 1982) upholding a patient's right to pursue a cause of action for the unauthorized release of confidential medical information to the patient's wife.

6. Professor Harris in his article noted that the Judicial Advisory Committee that drafted the report relied upon by the United States Supreme Court in Jaffee "deliberately chose not to write a 'future crime' exception into the bill. Its members were persuaded that, as a class, patients willing to express to psychiatrists their intention to commit crime are not ordinarily likely to carry out their intentions. Instead, they are making a plea for help. The very making of these pleas affords the psychiatrist his unique opportunity to work with patients in an attempt to resolve their problems. Such resolutions would be impeded if patients were unable to speak freely for fear of possible disclosure at a later date in a legal proceeding." 74 Wash. L. Rev. at 37.

7. The California Supreme Court reached a contrary result under California laws in People v. Wharton, 809 P.2d 290 (Cal. 1991) and Menendez v. Superior Court, 834 P.2d 786 (Cal. 1992), but those decisions rested squarely on the language of California Evidence Code Section 1024 which states that "there is no privilege" attached to the statements that trigger a Tarasoff warning. New York law contains no comparable sweeping statutory limitation of privilege; to

the contrary, the New York statute is broadly protective. Indeed, when the New York State Legislature has enacted exceptions to privileges or has required mandatory reporting, it has spoken with specific language. See Social Services Law Section 415 (mandatory reporting required in cases of child abuse or maltreatment); Family Court Act Section 1046(a)(vii) (physician-patient privilege does not apply in child protective proceedings.) In contrast, while Mental Hygiene Law Section 33.13(c)(6) states that a psychiatrist in a facility licensed or operated by New York State Office of Mental Health may give a warning to an endangered individual, that statute does not require a psychiatrist to give a warning nor state that there is no privilege attached to the statements that trigger a warning if a psychiatrist chooses to give a warning as in California.