Yes, the physician-patient privilege applies to New York Mental Hygiene Law Article 81 (“MHL 81”) guardianship proceedings. In MHL 81 proceedings, the Alleged Incapacitated Person (“AIP) enjoys an absolute right to doctor-patient confidentiality that precludes admission of his/her medical records or information into evidence unless he/she waives the privilege or has affirmatively placed his/her medical condition at issue.
The trial court violated the physician – patient privilege by admitting the testimony of the AIP’s treating physician. The AIP did not waive the privilege by affirmatively placing her medical condition in issue. However, such violation was ruled to be harmless error since medical testimony is not required in a guardianship proceeding and the nonmedical testimony established that the AIP was unable to function to care for her medical, personal and financial needs.
Information about the AIP’s medical condition included as part of the MHL 81 petition was deemed in violation of the physician /patient privilege and the court refused to consider it.
Even though medical records may not be admitted into evidence, the court evaluator (“CE”) may have access to them in order to prepare his or her report. The trial court denied an application by the AIP’s counsel to vacate a portion of an order allowing the court evaluator CE to review AIP’s psychiatric records. The AIP’s counsel sought to have the order vacated citing the physician-patient privilege of CPLR 4504(a), Matter of Miguel M., and HIPAA as prohibiting the disclosure of the confidential records over AIP’s objection when she had not placed her medical or mental condition at issue. The court held that the cited authority addressed evidentiary issues, that the CE’s access to the records to prepare her report was not such an evidentiary issue, that the CE’s review of the records might assist in completing her report, and that the question of the admissibility of this information into evidence would later be addressed at the hearing.
Contact experienced Rochester Guardianship attorneys Friedman & Ranzenhofer, PC at (585) 484-7432 if you need a guardian appointed for a family member or friend.