Provided by: Jennifer Kirschenbaum, Esq.
December 6, 2022
A patient warned me that I was going to be subpoenaed to testify in a divorce proceeding. Would doctor patient confidentiality not prevent this? If compelled to testify could one charge their customary daily rate?
Thanks to Richard Pagnotta, Esq. of K&K for confirming -
Doctor patient confidentiality would not prevent testimony if the patient is requesting testimony. "The privilege is waived where a party affirmatively places his or her physical or mental condition in controversy." Koump v Smith, 25 N.Y.2d 287, 294 . “When the patient personally, or through his [or her] witnesses, either lay or medical introduces testimony or documents concerning privileged information ... it also results from failure to object to disclosure of privileged information." St. Francis Hosp. of Port Jervis, 93 A.D.2d 491, 500 [2d Dept. 1983]. “As noted by the New York Court of Appeals, a patient waives the physician-patient privilege by putting in issue the condition for which the physician examined the patient.” (citing People v. Wilkins, 65 N.Y.2d 172, 490 N.Y.S.2d 759, 761, 480 N.E.2d 373 ) S.B. v U.B., 38 Misc. 3d 487, 496 [Sup. Ct., Kings County 2012].
When testifying, the physician can only speak as to what the records contain and the rationale for the diagnosis. The physician will not be able to comment on anything the patient told him during the examination if it was not included on his report and he will not be compelled to testify about irrelevant issues, i.e. this is for custody and the patient’s mental health is at issue, he should not be compelled to speak about a physical injury the patient received years ago that has now fully healed.
Prior to testifying, you may want to advice of counsel (your own counsel) to walk the record and cover what is and is not legally allowed to be covered.
Sorry to hear of the inconvenience.