Criminal Term, Part 88

Justice Snyder

People v. Robert Bierenbaum �This case presents a question of apparent first impression in this state: whether the physician-patient or psychologist-patient privileges enumerated in sections 4504 and 4507, respectively, of the Civil Practice Laws and Rules, survive after a psychiatrist or psychologist breaches the privilege by giving so-called Tarasoff (1) warnings. After reviewing the briefs submitted by the parties and an amicus brief submitted jointly by the New York State Psychiatric Association and the American Psychoanalytic Association, after conducting a hearing on this matter (2) and after hearing oral argument from both sides, this Court rendered a decision from the bench on September 12, 2000, to be followed by this written decision.(3)

Statement Of The Case

The defendant is charged with Murder in the second degree. It is alleged that on or about July 7, 1985, he killed his former wife, Gail Katz Bierenbaum, and then disposed of her body by throwing it out of an airplane over the Atlantic Ocean.

During November, 1983, approximately nineteen months prior to the date of the alleged murder, the defendant saw three different mental health professionals, two psychiatrists and one psychologist , for professional consultation. Each of these practitioners, with the consent of the defendant, spoke with the defendant's former wife and, in some cases, with one or both of defendant's parents, about their professional contacts with the defendant. Based on their individual assessments of the defendant, each of these practitioners became fearful that the defendant might harm his wife. The psychologist contacted Gail Katz Bierenbaum to ensure that she was safe and the two psychiatrists subsequently gave Tarasoff warnings to her, one in writing.

The defense now seek an in limine ruling prior to trial regarding the People's planned introduction as evidence at trial of the testimony of one or more of these three mental health practitioners whom the defendant consulted prior to his wife's death.

For the reasons set forth below, this Court finds that notwithstanding the fact that the defendant gave his permission to the practitioners to do so in advance, the breach of the physician-patient privilege by the psychiatrists in this case in order to provide Tarasoff warnings and/or to confer with defendant's wife and parents about the defendant does not result in a waiver of that privilege. Accordingly, the People are precluded from calling as witnesses at trial any of the three mental health practitioners consulted by the defendant in the period prior to his wife's death.

Findings of Fact

A hearing on this matter was held before this Court in September, 2000. At the hearing, the People called Michael Howard Stone, M.D., Stanley Bone, M.D. and Shelley Juran, Ph.D.. The defense called Marvin Bierenbaum , M.D., the defendant's father. Based on the testimony of Dr. Stone, Dr. Bone and Dr. Juran, which this Court finds to be credible and fully credits, I make the following findings of fact.

Dr. Juran , a psychologist, saw the defendant for a psychological consultation on one occasion approximately one or two days before the defendant saw Dr. Bone in November, 1983. In addition, Dr. Juran had approximately three telephone conversations with the defendant after her one and only meeting with him. With the defendant 's consent, she also spoke with the defendant's wife by telephone on the day she had her last telephone contact with him. Dr. Juran did not recall any restrictions that the defendant might have placed on her when he consented to her speaking with his wife. Dr. Juran asked the defendant for permission to speak with his wife because she wanted to hear her voice as she was concerned for her safety. She did not discuss her evaluation of the defendant with his wife and did not give her any Tarasoff warnings.

Dr. Bone, a psychiatrist, saw the defendant for psychiatric consultation on November 12 and November 16, 1983, after the defendant was referred to him by Dr. Robert Glick. In between his two sessions with the defendant, with the defendant's consent and at the defendant's direction, Dr. Bone also spoke briefly with the defendant's wife in order to provide her with Tarasoff warnings, which warnings he viewed as being for the benefit of both the defendant and his wife. The defendant's authorization to Dr. Bone to speak with his wife about anything he had told Dr. Bone or discussed with him was without limitation. Additionally, after speaking to the defendant's wife, but before his second session with the defendant , Dr. Bone spoke with the defendant's father. Prior to that conversation the defendant authorized Dr. Bone to speak with his father in a limited way, using his judgment. Dr. Bone does not believe that he raised with the defendant's father any concerns that he had about the safety of the defendant's wife. After his second consultation with the defendant, Dr. Bone referred him to Dr. Stone and had no further contact with him.

Dr. Stone, a psychiatrist, saw the defendant for psychiatric consultation on two occasions in November, 1983. The first session was on November 19, 1983, and there was a second meeting on or about November 24, 1983. The defendant had been referred to Dr. Stone by Dr. Bone. The sessions were being paid for by the defendant's father(4). During their first session Dr. Stone informed the defendant that he wanted to meet with his wife in order to obtain further information and insights that would aid him in his assessment of the defendant. Dr. Stone met with the defendant's wife on November 20, 1983. Later that day, after speaking with the defendant 's wife, Dr. Stone provided her with a letter which contained so-called Tarasoff warnings. He felt duty bound to provide that letter to her based upon what he had learned about the defendant during his first session with him and from his discussion with her about the defendant. She read the letter in his presence and discussed it with him in his office.

During their second session Dr. Stone presented the defendant with certain conditions that he required be met prior to his accepting the defendant as a patient for treatment. The defendant did not accept those conditions and Dr. Stone refused to accept him as a patient for treatment and their professional relationship terminated on that day. During that second session, after the defendant declined to accept Dr. Stone's preconditions for treatment, Dr. Stone informed the defendant that he intended to speak with the defendant's parents to discuss matters that had come up during his evaluation of the defendant. The defendant consented to Dr. Stone's speaking with his parents and gave him their telephone number to enable him to do so. The defendant did not place any limitations on what Dr. Stone could discuss with his parents. Dr. Stone spoke with defendant's parents sometime in early December, 1983, after the defendant's father returned from a trip to Taiwan and Japan (5).

Conclusions of Law

The physician -patient privilege in New York State is set forth in CPLR �4504. That statute provides, in pertinent part, "[u]nless the patient waives the privilege, a person authorized to practice medicine ... shall not be allowed to disclose any information which he acquired attending a patient in a professional capacity , and which was necessary to enable him to act in that capacity." The psychologist-patient privilege in New York State is set forth in CPLR �4507. That statute provides, in pertinent part, "[t]he confidential relations and communications between a psychologist registered under the provisions of article 153 of the education law and his client are placed on the same basis as those provided by law between attorney and client, and nothing in such article shall be construed to require any such privileged communications to be disclosed."

The creation by the Legislature of certain testimonial privileges is an exception to the general rule that parties in a judicial proceeding should be able to call as witnesses persons who possess material and relevant information, thereby enhancing the search for truth in a court of justice . The first testimonial privilege, that between attorney and client, existed at common law as early as the sixteenth century. In 1828, New York became the first state to eliminate the common law rule that physicians could be compelled to disclose information acquired while treating their patients. Prince, Richardson on Evidence, �5-301(11th Ed. Farrell). Over the years, the physician-patient privilege has been extended to include various other licensed health care providers.

The purpose of the physician -patient privilege is to remove any legal inhibition to full disclosure by the patient to the physician , and to foster full, candid and open communication between physicians and their patients so that physicians can assess, advise and treat their patients properly. People v. Sinski, 88 NY2d 487, 491, 494 (1996). To achieve this goal, communications between physician and patient are protected from disclosure, thereby assuring patients that information they provide to their physicians which might result in humiliation , embarrassment or disgrace, remains confidential. In order for the physician-patient privilege to exist in a specific case, there must be a physician-patient relationship, the privileged information must be acquired by the physician while attending the patient and the information must be necessary to enable the physician to act in his or her professional capacity. See, generally, People v. Decina, 2 NY2d 13 3, 143 (1956), Fisher v. Fisher, 129 NY 654, 655 (1892).

Our Court of Appeals has long held that the physician-patient privilege is to be given, "a broad and liberal construction to carry out its policy," has narrowly construed statues limiting the privilege and has rejected claims that there is a general public interest exception to the privilege. Sinski, supra, at 492.

Testimonial privileges are self-triggering and are waived only by affirmative action on the part of the person cloaked with the privilege. Unless there is a waiver by the beneficiary of the privilege, no disclosure may be allowed absent a statutory exception to the privilege. See, People v. Easter, 90 Misc. 2d 748, 749 (County Court, Albany County 1977).

However , the physician-patient privilege is not absolute. Generally, the presence of third parties who are not necessary to the physician-patient relationship during otherwise privileged physician-patient interactions or the sharing by the patient of otherwise privileged information with such third parties voids the protection of the privilege. This is predicated on the fact that if a patient is willing to allow third parties who are not necessary to the physician-patient relationship to be privy to the otherwise privileged information , it is self-evident that he or she does not consider that information to be confidential or private and, therefore, it should not be protected as privileged. Once a person waives the physician-patient privilege it is generally deemed to have been waived for all time; for having allowed the otherwise privileged information to be disclosed in the public domain, there is no disclosure left to protect against and no further reason to accord privileged status to the information that has been disclosed (6). See, People v. Bloom, 193 NY1, 10 (1908). Most often this situation occurs when a patient places his or her mental or physical state at issue in an administrative or judicial proceeding, thereby waiving the physician-patient privilege.

Our Legislature has enacted a number of statutory provisions which preclude or limit the physician-patient privilege. For instance, Social Services Law �415 and the Family Court Act �1046(a)(vii) require disclosure of privileged information in cases involving suspected child abuse or maltreatment. Social Services Law �384-b(3)(h) provides for release of privileged information in proceedings pertaining to the guardianship and custody of dependent children. The Public Health Law provides for release of privileged information pertaining to patients suffering from communicable diseases [�2101(1)], treatment of persons who are abusers of controlled substances [�3373] as well as for court-ordered disclosure of HIV related information upon a showing of compelling need [�2785(2)]. The Mental Hygiene Law authorizes disclosure of privileged information when a patient presents a serious danger to others [�33.13(c)(6)] or for use in guardianship proceedings [�81.09(d)] . The Penal Law mandates the reporting of privileged information regarding gunshot or knife wounds [� 265.25] and serious burns [�265.26].

Physicians and other licensed health care providers have an implied contractual obligation to maintain the confidentiality of information disclosed to them by a patient that is necessary to their diagnosis and treatment of that patient. See, MacDonald v. Clinger , 84 AD2d 482, 483 (4th Dept. 1982). This is particularly and necessarily true in the professional relationships between mental health professionals and their patients. See, Doe v. Roe, 93 Misc2d 201, 210-211 (New York County 1977). Notwithstanding this duty to maintain confidentiality, where a patient is a danger to himself or to others, a mental health professional may be required to disclose otherwise confidential information to the extent necessary to protect a threatened interest. "The protective privilege ends where the public peril begins." Clinger, supra, at 487, citing Tarasoff v. Regents of University of California , 529 P.2d 553, 561 (1974), vacated and modified on rehearing, 551 P.2d 334 (1976). The duty to protect flows from the special relation that exists between a mental health professional and the patient which imposes a duty upon the mental health professional to control the patient's conduct and by the special relation that exists between the mental health professional and the potential victim of a dangerous patient . See, W. Prosser, Law of Torts, 325-26 (4th ed. 1971).

After Tarasoff formally delineated for the first time a mental health professional's duty to warn endangered third parties of potential harm from a dangerous patient based on traditional tort theory, other courts began to clarify the duty to warn and/or protect enunciated in Tarasoff. In some cases the duty was expanded, restricted or ignored . In McIntosh v. Milano, 403 A.2d 500 (NJ, 1979), another case where, like Tarasoff, the identity of the potential victim was known to the psychiatrist in advance, the court held "a psychiatrist or therapist may have duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and accordance with the standards of his profession established at trial, that the patient is or may present a probability of danger to that person." Id. at 511-12. In Lipari v. Sears, Roebuck & Company, 497 F.Supp. 185 (D. Nebraska 1980), where a specific potential victim was not known as one was in Tarasoff and McIntosh, the court expanded the nature of therapists' duty to protect, holding that, "[t]he relation between a psychotherapist and his patient gives rise to an [affirmative duty] for the benefit of third persons. This duty requires that the therapist initiate whatever precautions are reasonably necessary [to protect ] potential victims of his patient. This duty arises only when, in accordance with standards of his profession , the therapist knows or should know that his patient's dangerous propensities present an unreasonable risk of harm to others." Id. at 193.

Although New York State has recognized that a mental health professional has a "duty to protect" third parties from the foreseeable behavior of a dangerous patient , neither statute nor case law in New York mandate that a mental health professional provide Tarasoff warnings to an identified potential victim ("a duty to warn"). However, the Appellate Division, Fourth Department has held that providing Tarasoff warnings to a potential victim without the patient's authorization does not render the mental health professional liable for a breach of confidentiality when there is justification or excuse for such action based on a showing of circumstances and compelling interests. See, Clinger, supra, 84 A.D.2d at 487. A mental health professional may satisfy his or her duty to protect by a variety of methods that are appropriate to a particular situation including, but not limited to, hospitalizing a potentially dangerous patient for inpatient treatment, increasing the frequency of outpatient contacts with the patient to monitor better the patient's mental status and to provide support, initiating psychopharmacological treatment for the patient's symptoms, utilizing various psychotherapeutic interventions such as cognitive therapy or placing the patient in a partial hospitalization (so-called "day hospital") program.

The Instant Application

The Proposed Testimony by Two Psychiatrists

The People seek to introduce as evidence at this trial the testimony of two psychiatrists whom the defendant consulted prior to his wife's death. As discussed, each of these two psychiatrists spoke with the defendant's wife and with one or both of his parents. They also each gave Tarasoff warnings to the defendant's wife. Asserting that the communications between the defendant and each of these psychiatrists are privileged, the defense argues that they may not be called as witnesses by the People at trial. In opposition, the People argue that once the privilege necessarily was breached in order to give Tarasoff warnings, the privilege ceased to exist. They further argue that even if this were not the case, by consenting to these practitioners speaking with the third parties about their respective consultations with him, the defendant waived the privilege.

Turning to the first branch of the People's argument, it is clear that the two psychiatrists gave permissible Tarasoff warnings and, in doing so, breached the privilege. The People assert that since the privilege was breached, it is waived for all time and the psychiatrists should be permitted to testify that they gave Tarasoff warnings and the basis of their determination to do so. The People's argument is without merit. In New York State, the physician-patient privilege is to be given a broad and liberal construction to carry out its policy and statutes limiting the privilege should be narrowly construed. Sinski, supra, at 492. In this regard, the purpose of allowing the breach of the physician-patient privilege to provide Tarasoff warnings is for the limited purpose of protecting potential victims from a patient who presents with the probability of engaging in violent conduct. It is not for the purpose of providing information to aid the prosecution in securing a conviction if the patient subsequently engaged in the violent conduct.

Interestingly, after this Court rendered its oral decision in this matter, on September 14, 2000, the United States Court of Appeals for the Sixth Circuit decided a similar issue to the one in the case-at-bar. In U.S. v. Hayes, 227 F3d 578 (6th Cir 2000), the court decided that there was not a dangerous patient privilege exception to the federal psychotherapist -patient testimonial privilege. In that case the government sought to prosecute a mentally ill individual for making threats against a federal employee during several psychotherapy sessions. Following the patient 's making these threats his therapist warned the intended victim about them. The victim contacted federal law enforcement officials who then arrested the patient and charged him with threatening to murder a federal official. The District Court suppressed testimony by the psychotherapist based on the federal psychotherapist-patient privilege, and subsequently dismissed the case. The Government appealed. The Court of Appeals affirmed the dismissal holding, "[w]e see only a marginal connection, if any at all, between a psychotherapist's action in notifying a third party (for his own safety) of a patient's threat to kill or injure him and a court's refusal to permit the therapist to testify about such threat (in the interest of protecting the psychotherapist/patient relationship) in a later prosecution of the patient for making it." Id. at 583-584.

The Sixth Circuit further noted,

"[o]n the one hand [the defendant] should be applauded for seeking professional help for the mental and emotional difficulties he was suffering. Yet, because the psychotic delusions for which he sought treatment took the form of homicidal intentions toward an employee of the federal government, [he] now finds himself facing a felony conviction and incarceration because his professional care givers are prepared to testify against him. ... [R]ecognition of a 'dangerous patient' exception surely would have a deleterious effect on the 'atmosphere of confidence and trust' that is implicit in the psychotherapist/patient relationship . While early advice to the patient that, in the event of disclosure of a serious threat of harm to an identifiable victim, the therapist will have a duty to protect the intended victim, may have a marginal effect on a patient's candor in therapy sessions, an additional warning that the patient's statements may be used against him in a subsequent criminal prosecution would certainly chill and very likely terminate open dialogue. ... Thus, if our Nation's mental health is indeed as valuable as the Supreme Court has indicated, and we think it is, the chilling effect that would result from the recognition of a 'dangerous patient' exception and its logical consequences is the first reason to reject it. ... We think that allowing a psychotherapist to testify against his or her patient in a criminal prosecution about statements made to the therapist by the patient for the purpose of treatment arguably 'serv[es] [a] public end,' but it is an end that does not justify the means. ... [unlike a psychotherapist testifying at a civil commitment hearing] a psychotherapist's testimony used to prosecute and incarcerated a patient who came to him or her for professional help cannot be similarly justified." Id. at 584-585.

Explaining exceptions to the privilege and applying the privilege broadly to carry out its policy, New York courts have held that exceptions to the physician-patient privilege do not allow the prosecution to utilize the otherwise privileged information to further a criminal prosecution. Most notably, in Sinski, supra, a police officer who suffered from significant pain submitted a number of insurance claims for prescriptions for controlled substances. The police department began to investigate him. Subsequently, four dentists and three physicians were called to testify before the grand jury with regard to their care and treatment of the patient and the medications prescribed for his condition. Some of the patient's medical records were also received in evidence. The patient was indicted for Criminal Possession of a Forged Instrument based on his possession of a prescription for Percodan obtained from one of his dentists on which the number of capsules prescribed was allegedly altered from 20 to 120, and with two counts of violating Public Health Law ��3397(1)(a)(i) and 3397(4) based on his obtaining a large number of prescriptions for narcotic pain medications from several of his treating practitioners by misrepresenting or concealing the amount of similar medications he was receiving from other treating practitioners during the same period. In reversing the defendant's conviction on the ground that information protected by the physician-patient privilege was admitted at trial over his objection, the Court of Appeals held that the purpose of the reporting requirements of Article 33 of the public Health Law was to provide information to the Commissioner of Health for statistical, epidemiological and research purposes. The Court found that there was nothing in Article 33 to sustain the prosecution's claim that in enacting that statute the Legislature intended to override the physician-patient privilege contained in CPLR 4504 and make confidential information generally available to law enforcement agencies in drug cases. (7)

In People v. Bass, 140 Misc.2d 57 (Supreme Court , Bronx County 1988), the defendant, a father, had sought counseling from a certified social worker regarding his prior sexual abuse of his nine-year-old daughter. After being told of these activities the certified social worker reported the defendant's statements to the New York State Child Abuse and Maltreatment Central Registry as required by Social Service Law �413. The People sought to introduce the defendant statements to two certified social worker at defendant's trial. They argued that because the certified social worker was required to report defendant statements pursuant to Social Service Law �413 and because the statements are permitted to be disclosed by the social worker in Family Court in child abuse proceedings pursuant to Family Court Act �1046 (a)(vii), the certified social worker-patient privilege was not applicable . The Family Court rejected the People's application. Narrowly construing these statutory exceptions to the privilege, the court found that the exception to the privilege created by the mandatory reporting requirements of Social Service Law �413 did not constitute a waiver by the defendant of the certified social worker-patient privilege and that the exception to the privilege created by Family Court Act � 1046 (a)(vii) to permit the use of otherwise privileged material at child protective proceedings in Family Court was not meant to apply equally to criminal cases. Id. at 60.(8)

Therefore, this Court holds that the permissible breach of the privilege by a psychiatrist to provide Tarasoff warnings does not abrogate the physician-patient privilege.

Turning to the second branch of the People's argument, it is clear that the defendant gave permission to the two psychiatrists to speak with his wife and with one or both of his parents. The People argue that even if the breach of the physician-patient privilege by a psychiatrist who gives permissible Tarasoff warnings does not constitute a waiver by the patient of the protection afforded by the privilege, the defendant's consent to these psychiatrists speaking with his wife and parents waived the privilege. In this regard, the People rely on the well-settled principle that the presence of third parties who are not necessary to the physician -patient relationship during otherwise privileged physician-patient interactions or the sharing y the patient of otherwise privileged information with such third parties voids the protection of the privilege . See, Prince, Richardson on Evidence, �5-318 (11th Ed. Farrell)

It should be noted that Dr. Bone indicated that he spoke with defendant's wife because, "I thought it would be of service to him for me to do that." He further stated that when he spoke with her he warned her that she may be in danger from the defendant. He further indicated that he spoke to the defendant's father because he thought, "it could be of use to the defendant," only discussed with the defendant's father his consultation with the defendant "in a very limited way," and did not recall discussing with the defendant's father matters that the defendant told him in consultation.

Similarly, Dr. Stone indicated that he met with the defendant's wife, "as an informant. She was a party to things that transpired and I wanted to hear her side of the story as one does in such a situation." After speaking with her, Dr. Stone gave her a letter containing Tarasoff warnings and discussed that letter with her. Dr. Stone also interviewed the defendant's parents with regard to information concerning the defendant and discussed with them matters that the defendant had discussed with him in consultation.

This Court finds that it is clear that discussing the patient's condition and dangerousness with his family was a necessary part of the psychiatrists' professional service to the defendant in this case. Because these disclosures were to further the interests of the defendant and were reasonably necessary for the transmission of information to accomplish the purposes for which they saw the defendant in a professional capacity, the disclosure by these psychiatrists to the defendant's wife and parents of information they obtained from the defendant in the course of their consultations with him did not abrogate the physician-patient privilege.

The People assert that because Dr. Stone spoke with the defendant's parents after the defendant declined to accept Dr. Stone's pre-conditions for treatment and after it was clear that he had no plans to treat the defendant or see him again in a professional relationship, no professional relationship existed between Dr. Stone and the defendant at that time. They argue that, therefore, since Dr. Stone's professional relationship with the defendant had ended before he spoke with the defendant's parents with the defendant 's consent, the privilege was waived.

This People's argument in this regard is unavailing. This Court finds that a psychiatrist's duty to a patient does not necessarily end when the patient declines treatment. If, as in this case, the patient appears to pose a risk to himself or to others, the psychiatrist has an affirmative obligation to take appropriate action to attempt to address this potential danger. Obtaining additional information from the patient's family to further assess the need for intervention and for advising the patient's family about the patient's need for treatment and about his potential dangerousness, as the psychiatrists did in this case, was necessary to further the objectives for which the patient sought professional assistance and did not vitiate the physician-patient privilege.

The Proposed Testimony by the Psychologist

The People also seek to introduce as evidence at the trial the testimony of a psychologist whom the defendant consulted prior to his wife's death. With the defendant's consent, she spoke with the defendant's wife by telephone on the day she had her last telephone contact with him. Although she did not discuss her evaluation of the defendant with his wife and did not give her any Tarasoff warnings, she spoke with her by telephone, "because I wanted to hear her voice because I was concerned for her safety."

The People assert that because no Tarasoff warnings were contemplated or given by the psychologist the call was not privileged and suggest that the People should be allowed to call the psychologist to explain that she sought to speak with the defendant 's wife and why. The defense argues that the reason the psychologist asked to speak with the defendant 's wife was a product of defendant's professional consultation with the psychologist and that there was no waiver of the privilege by the defendant in permitting the psychologist to contact his wife.

At the outset, although it is not essential to this Court's determination of the issue-at-bar, I note that the psychologist-patient privilege is broader than the physician-patient privilege. People v. Wilkins , 65 NY2d 172 (1985). Even if the People are permitted only to elicit the limited testimony that the psychologist sought to speak with the defendant's wife because she was concerned for her safety, the defense would not be able to cross-examine the psychologist effectively without invading the psychologist -patient privilege. Further, the testimony itself manifests the state of mind of the psychologist based on privileged information she received from the defendant. This Court finds that allowing the psychologist to testify would necessarily and impermissibly invade the psychologist-patient privilege and is prohibited .

The Effect of the Testimonial Privileges in this Case

In denying the People's application this Court is disturbed that evidence which could be highly probative must be excluded. Unfortunately , the nature of testimonial privileges is to interfere with the truth finding process. "Exceptions from the general rule disfavoring testimonial privileges may be justified however, by a 'public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel v. U.S., 445 US 40, 50 (1980)[quoting Elkins v. U.S., 364 US 206, 234 (1960, Franfurter, J., dissenting )].

In Jaffe v. Redmond, 518 US 1, 9 (1996), the United States Supreme Court noted that, 

"the psychotherapist-patient privilege is 'rooted in the imperative need for confidence and trust.' Id. Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination , objective information supplied by the patient, and results of diagnostic tests. Effective psychotherapy , by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment . As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rule of Evidence, a psychiatrist's ability to help her patients 'is completely dependant upon [the patients'] willingness and ability to talk freely . This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ... there is wide agreement that confidentiality is a sine qua none for successful psychiatric treatment.'" Id. at 10-11. The Court went on to note, "[t]he psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance. ... If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation." Id. at 11-12.

Frustrating as the application of the physician-patient privilege and the psychologist-patient privilege is to the truth finding process, particularly in this most serious case because of the limitation it imposes on the admission of highly probative evidence that the People seek to introduce(9), that frustration does not permit this Court to ignore the law. Perhaps some change in the law should be considered; however, that is a legislative function, not a judicial one.

For the reasons discussed above, the People are precluded from calling as witnesses at the trial of this case the three mental health professionals with whom the defendant consulted prior to his wife's death.

The foregoing opinion constitutes the findings of fact, conclusions of law, decision and order of this Court.



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(1) Tarasoff v. Regents of the University of California, 551 P.2d 335 (1976) imposed the first "duty to protect" on psychotherapists, holding that, "once a therapist does in fact determine ... that a patient poses a serious risk of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger." Id. at 345. Thus, the safety of innocent third parties was deemed to outweigh the purpose of the psychotherapist-patient privilege. New York law recognizes a "a duty to protect", but see discussion, infra.

(2) It should be noted that the hearing was structured to exclude all references to the actual statements or the substance of the defendant 's statements to the psychotherapists in question. This was done to make certain that the jury pool would not potentially be tainted by lurid media "accounts" of alleged admissions of prior acts of violence and of violent propensities by the defendant to these psychotherapists, when these admissions (if any ) might ultimately be deemed privileged.

(3)On October 24, 2000, the defendant was convicted of Murder in the second degree after a jury trial. (Part 88, Supreme Court, New York County )

(4) The fact that the defendant's father paid Dr. Stone for the services he rendered to the defendant did not permit Dr. Stone to discuss with him privileged information about the defendant absent the defendant's consent. Nor did the fact that the defendant's father was paying for Dr. Stone's services make him a necessary third party to the defendant's treatment which would allow Dr. Stone to share with him privileged information about the patient without violating the privilege and without causing a waiver of the privilege, absent other circumstances.

(5) Marvin Bierenbaum, M.D., the defendant's father, testified on behalf of the defense. He testified that although he wrote a check to Dr. Stone dated January 1, 1984, he did not hear the name of Michael Stone until he read it in the newspaper in connection with this case. However, the defendant's father did recall having spoken with Dr. Bone. I credit the defendant's father's testimony that he spoke with Dr. Bone. However, I do not credit his testimony that he did not have any contact with Dr. Stone. In this regard Dr. Stone was unable to recall the exact date he met with defendant's parents, only that it was several days after his last session with the defendant. Dr. Stone recalled that he met with the defendant's parents shortly after the defendant's father had returned from a trip to Taiwan, a fact he could have learned only from the defendant's parents after his father returned from that trip. And, the date the defendant's father returned from that trip approximated the period during which Dr. Stone testified that he saw the defendant's parents.

(6) There are exceptions to this rule . Most notably, the Legislature enacted Laws of 1984, Chapter 913, to make it clear that, "a patient who, for the purpose of obtaining insurance benefits, authorizes the disclosure of any such privileged communication to any person shall not be deemed to have waived the privilege [between physician, dentist , podiatrist, chiropractor, psychologist and certified social worker and patient]."

(7) The Court of Appeals contrasted its decision in Sinski, supra, with its holding in Matter of Camperlengo v. Blum, 56 NY2d 251 (1982). Camperlengo involved charges of unlawful billing by a Medicaid provider. During the investigation of that case the provider sought to quash subpoenas seeking patient records of the grounds of physician-patient privilege. There, based on the implicit exception to the privilege contained in the statutory provisions mandating extensive reporting and record-keeping for Medicaid recipients , the Court rejected the provider's assertion of the privilege.

(8) In People v. Gearhart, 148 Misc 2d 249 (County Court, Nassau County 1990) the Court disagreed with the Bass Court , holding that there was a public interest exception to the physician-patient privilege in child abuse cases and declined to dismiss an indictment that was obtained, at least in part, based on the testimony of a physician who was a mandated reporter of suspected child abuse or maltreatment. In doing so the Gearhart court noted that courts had held that there was a similar public interest exception to Article 33 of the Public Health Law. Subsequent to the Gearhart decision, in Sinski, supra, the Court of Appeals rejected a public interest exception to Article 33 of the Public Health Law, holding that, "we have narrowly construed statutes limiting the privilege and rejected claims that there is a general public interest exception to [the physician-patient privilege], Id. at 492."

(9) The Jaffe court rejected the approach of attempting to balance, in individual cases, the importance of the privileges versus the need for disclosure, holding, "[w]e reject the balancing component of the privilege. ... Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege. ... [I]f the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege ... is little better than no privilege at all." Id. at