Medical Records - The New York State Privilege & Waiver

We represented the family of a young woman who was killed in a two car accident in Suffolk County, New York, when the driver of her car went through a stop sign and was hit by an oncoming car. There was a belief that the driver of the young woman’s car was drunk. This belief was confirmed by a test of his blood at the hospital he was taken to for treatment of his injuries. This blood test would not be admissible in a criminal trial due to a chain-of-custody issue. There would have to be an official blood test ordered by a warrant. The police did not get the warrant and the District Attorney’s office declined to prosecute claiming that there was no admissible proof under the New York State Vehicle and Traffic Law statute for Driving While Intoxicated. The family looked to Foley, Griffin, Jacobson & Faria, LLP to prosecute a wrongful death action against the drivers of both cars. However, because of New York State’s rule that a defendant in a personal injury/wrongful death action has his/her medical records protected by the physician-patient privilege, we could not introduce the medical records showing that the driver of the host car was intoxicated. There is only one exception to this rule, if the defendant waived the privilege. During the prosecution of the wrongful death action, we learned that the driver brought his own personal injury action for the injuries he sustained. His medical condition was now out in the open and his hospital records showed that he had a blood alcohol level over twice the New York State legal limit. Once the driver realized that his intoxication would be too strong an issue for him to overcome in his lawsuit, he withdrew it. We attempted to use his hospital records in the wrongful death action to prove he was intoxicated. His lawyers objected, claiming that he was still protected by the physician-patient privilege. We countered that once the driver waived the privilege in his action, it was waived for all time and all purposes. The fact that he discontinued his lawsuit was of no concern. After argument, the Judge agreed with our position and ruled that the hospital records of the driver would be admitted into evidence. www.foleygriffin.com