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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 20 

The People &c.,

 Appellant,

 v.

David Rivera,

 Respondent.

David P. Stromes, for appellant.

Lloyd Epstein, for respondent.

New York State Psychiatric Association et al., amici

curiae.

PIGOTT, J.:

Defendant, while seeking treatment from a psychiatrist,

admitted to sexually abusing an 11-year-old relative. The

psychiatrist notified the Administration for Children's Services

(ACS) of defendant's admission. Subsequently, at defendant's

criminal trial, over defendant's objection, the trial court

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permitted the psychiatrist to testify that defendant had made the

admission. The issue on this appeal is whether the trial court's

ruling ran afoul of the physician-patient privilege (see CPLR

4504 [a]). We hold that it did. 

I.

On November 1, 2007, the child revealed to her

pediatrician, in her mother's presence, that she had been

sexually abused by defendant. The pediatrician reported the

abuse to ACS. The child's mother relayed the accusation to

defendant's mother, who told defendant of the child's accusation. 

Shortly after receiving word of the child's allegation, defendant

was taken by ambulance to the psychiatric emergency room at

Columbia Presbyterian Hospital (CPH), complaining of depression

and suicidal ideation. While being treated, defendant told his

psychiatrist that he had sexually abused the child.

The following day, the child was medically examined at

a Child Advocacy Center (CAC). While there, she spoke with a

detective, who, during a subsequent investigation, learned that

defendant had been admitted to CPH. The detective obtained a

court order requiring CPH to notify the police upon defendant's

release. Four weeks later, following his discharge, defendant

was arrested and charged with, among other things, predatory

sexual assault against a child (Penal Law § 130.96). 

Prior to trial, the People moved for the issuance of a

subpoena duces tecum seeking defendant's psychological records

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from CPH for in-camera review by the trial court. Specifically,

the People sought records that included any admission defendant

may have made concerning the crimes charged in the indictment,

which, they argued, could be released as either an exception to

or waiver of the physician-patient privilege. Defendant

countered that the disclosure of the medical records and any

testimony by the psychiatrist concerning defendant's treatment

was barred by the physician-patient privilege pursuant to CPLR

4504 (a), and that defendant had not waived that privilege. 

Following the in-camera review of the records, Supreme

Court held that the admissions defendant made to his psychiatrist

were privileged because they were made in the course of diagnosis

and treatment of his condition. However, the court, while

refusing to allow "the full extent of defendant's admissions" to

be used, held that, because the psychiatrist had disclosed the

reported abuse to ACS, the fact that defendant had admitted to

the abuse was admissible at trial. 

At trial, the child testified concerning the abuse she

sustained at the hands of defendant. The People then called

defendant's psychiatrist, who testified that defendant admitted

to having sexually abused the child. Defendant, testifying on

his own behalf, denied committing any sexual abuse. During

summation, the People referred to the psychiatrist's testimony

and, during deliberations, the jury requested a read-back of that

testimony. Defendant was convicted as charged and sentenced to a

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term of 13 years to life in prison. 

The Appellate Division unanimously reversed the

judgment of Supreme Court and remanded for a new trial, holding

that Supreme Court erred in permitting the psychiatrist to

testify concerning defendant's admissions of sexual abuse and

that the error was not harmless (99 AD3d 535, 535 [1st Dept

2012]). A Judge of this Court granted the People leave to appeal

and we now affirm. 

II.

The narrow issue on this appeal is whether the trial

court erred in allowing defendant's psychiatrist to testify

concerning defendant's admission that he abused the child.1

 We

hold that the trial court's ruling violated the physician-patient

privilege. 

CPLR 4504 (a) provides, as relevant to this appeal,

that "[u]nless the patient waives the privilege, a person

authorized to practice medicine . . . shall not be allowed to

disclose any information which he [or she] acquired in attending

a patient in a professional capacity, and which was necessary to

1

 We do not address the propriety of the Appellate

Division's determination that "the psychiatrist made a proper

disclosure of the abuse" (99 AD3d at 535), nor is it necessary

for us to address whether this Court should adopt the so-called

"Tarasoff doctrine" (see Tarasoff v Regents of Univ. of

California, 17 Cal3d 425, 551 P2d 334 [1976]), which requires

mental health professionals to disclose a patient's confidential

information to third parties when the professional determines

that the patient poses a "serious danger of violence to another"

(17 Cal3d at 431, 551 P2d at 340).

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enable him [or her] to act in that capacity." The People do not

argue that defendant waived the privilege, nor do they dispute

that there was a "professional relationship" between defendant

and his psychiatrist (see e.g. People v Sliney, 137 NY 570, 580

[1893]). Nor do the People contend that the information conveyed

by defendant to his psychiatrist was not necessary for his

treatment (see People v Decina, 2 NY2d 133, 143 [1956]). Rather,

the People claim that, because defendant's admission related to

the sexual abuse of a child, it was not privileged since

defendant had no reason to believe that it would remain

confidential (see generally id. at 145).

Regardless of whether a physician is required or

permitted by law to report instances of abuse or threatened

future harm to authorities, which may involve the disclosure of

confidential information, it does not follow that such disclosure

necessarily constitutes an abrogation of the evidentiary

privilege a criminal defendant enjoys under CPLR 4504 (a). 

Whereas confidentiality is an ethical requirement of physicians

"that is essential to psychiatric treatment . . . and is based in

part on the special nature of psychiatric therapy as well as on

the traditional ethical relationship between physician and

patient" (The Principles of Medical Ethics with Annotations

Especially Applicable to Psychiatry, Section 4, Annotation 1, at

6 [2013 ed]), the physician-patient privilege is a rule of

evidence that protects communications and medical records (see

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Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]). The

privilege serves several objectives: it encourages unrestrained

communication between a patient and his or her medical provider

so that the patient may obtain diagnosis and treatment without

fear of embarrassment over potential disclosure; it encourages

physicians to be forthright in recording their patients'

confidential information; and it protects "patients' reasonable

privacy expectations against disclosure of sensitive personal

information" (Matter of Grand Jury Investigation in N.Y. County,

98 NY2d 525, 529-530 [2002] [citations omitted]). 

The People argue that because the Legislature has

carved out several exceptions to the physician-patient privilege,

defendant could not reasonably have expected his statements to

remain confidential in the context of a criminal proceeding. 

Those exceptions, however, underscore that whenever the

Legislature has decided to limit the privilege's scope, it has

done so through the enactment of specific legislation to address

the particular subject matter (see Matter of Grand Jury

Investigation of Onondaga County, 59 NY2d 130, 136 [1983]). If

the Legislature had, in fact, decided to create an additional

exception permitting a criminal defendant's mental health

professional to testify against the defendant in a criminal

proceeding, it would have done so. Indeed, we have noted that,

given the number of statutory exceptions to the privilege, "the

legislative concept [is clear] that exceptions to the

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statutorily-enacted physician-patient privilege are for the

Legislature to declare" (Matter of Grand Jury Investigation of

Onondaga County, 59 NY2d at 136), and we need look no further

than section CPLR 4504 itself which contains those exceptions

(see CPLR 4504 [b] [requiring certain physicians and other health

professionals "to disclose information indicating that a patient

who is under the age of sixteen years has been a victim of a

crime"], [c] [requiring physicians and nurses "to disclose any

information as to the mental or physical condition of a deceased

patient privileged under subdivision (a)" in certain designated

circumstances]). 

When the Legislature has sought to either limit or

abrogate the privilege beyond the confines of section 4504, it

has been clear in its intent (see Social Services Law § 384-b [3]

[h] [privilege not available in a proceeding seeking an order

committing the guardianship and custody of a destitute or

dependent child]; Social Services Law § 413 [identifying class of

mandatory reporters of suspect child abuse and maltreatment];

Social Services Law § 415 [providing that reports of suspected

child abuse or maltreatment must be made in writing and "shall be

admissible in evidence in any proceedings relating to child abuse

or maltreatment"]); Family Ct Act § 1046 [a] [vii] [stating that

the privilege "shall (not) be a ground for excluding evidence

which would otherwise be admissible" in abuse and neglect

proceedings]; Mental Hygiene Law § 81.09 [d] [permitting a court

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evaluator in guardianship proceedings to apply for permission to

inspect medical and psychiatric records of the alleged

incapacitated persons, and allowing the court to order such

disclosure notwithstanding the physician-patient privilege];

Public Health Law § 3373 [stating that "for purposes of duties

arising out of" article 33, relating to controlled substances,

"no communication made to a practitioner shall be deemed

confidential within the meaning of the civil practice law and

rules relating to confidential communications between such

practitioner and patient"]). 

Although the Legislature may not always explicitly set

forth its intention to limit or abrogate the privilege by

expressly cross referencing CPLR 4504, its intent is evident from

the directives of the particular statute (see Penal Law § 265.25

[requiring attending physicians to report to police every case of

"any injury arising from or caused by the discharge of a gun or

firearm" and "a wound which is likely to or may result in death

and is actually or apparently inflicted by a knife, icepick or

other sharp or pointed instrument"]; Penal Law § 265.26

[requiring physicians to report certain burn injuries to the

office of fire prevention and control]; Public Health Law § 2101

[1] [requiring physicians to "immediately give notice of every

case of communicable disease" to the proper authorities]). 

We have acknowledged that although the physicianpatient privilege is in derogation of the common law, it should

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be afforded a "broad and liberal construction to carry out its

policy" of encouraging full disclosure by patients so that they

may secure treatment (Matter of Grand Jury Investigation of

Onondaga County, 59 NY2d at 134 [citation and internal quotations

omitted]). Conversely, exceptions that limit the privilege are

afforded a narrow construction (see People v Sinski, 88 NY2d 487,

492 [1996]). From these statutorily-enacted exceptions, it is

evident that the Legislature has made considered judgments in

deciding when the physician-patient privilege should give way to

what it deems to be greater interests, namely, proceedings

involving allegations of child abuse, maltreatment and neglect,

and guardianship of allegedly incapacitated persons. The

Legislature has determined that the protection of children is of

paramount importance, so much so that it has either limited or

abrogated the privilege through statutory enactments. 

The People erroneously assert that these exceptions

place offenders on notice that the physician-patient privilege

does not apply to statements or admissions triggering a duty to

disclose. But it is one thing to allow the introduction of

statements or admissions in child protection proceedings, whose

aim is the protection of children, and quite another to allow the

introduction of those same statements, through a defendant's

psychiatrist, at a criminal proceeding, where the People seek to

punish the defendant and potentially deprive him of his liberty. 

Evidentiary standards are necessarily lower in the former

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proceedings than in the latter because the interests involved are

different. Thus, the relaxed evidentiary standards in child

protection proceedings lend no credence to the People's argument

that defendant should have known that any admission of abuse he

made to his psychiatrist would not be kept confidential. 

The Legislature has not created an express exception

permitting a psychiatrist to testify concerning an admission made

by a criminal defendant during the course of a professional

relationship where the admission was made for purposes of

diagnosis and treatment. Even if a patient is cognizant of his

psychiatrist's reporting obligations under child protection

statutes, that does not mean that he should have any expectation

that statements made during treatment will be used against him in

a criminal matter.

Defendant, who was admitted to CPH based upon the

diagnoses of depression and suicidal ideation, allegedly made

admissions to his psychiatrist for the purpose of treatment. 

Thus, defendant's admission was subject to the physician-patient

privilege and, absent any waiver or exception (neither of which

is present here), its admission in evidence through the testimony

of defendant's psychiatrist violated section 4504 (a). 

III. 

The People next claim that, even if defendant's

admission was privileged, we may nonetheless decline to enforce

the privilege if its invocation would undermine section 4504's

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policy objectives. According to the People, enforcement of the

physician-patient privilege after a disclosure has been made does

not promote the purposes of encouraging communication or

protecting privacy but, rather, runs counter to the Legislature's

policies and practices that are aimed at preventing child abuse

and bringing abusers to justice. 

We reject the People's suggestion that we curtail the

privilege in this regard. As stated above, the Legislature has

crafted exceptions to the privilege in child protection

proceedings in order to advance the important interest in

protecting the welfare of children. Moreover, the cases cited by

the People in support of their contention that we may imply from

those enactments that the physician-patient privilege was not

meant to apply to instances where a disclosure is made are

inapposite. In each of those cases, the Legislature had created

a statutory scheme that charged a governmental body with

enforcing certain health care laws, and we held that the need for

the disclosure of confidential records was implied from the

powers that the Legislature conferred on the governmental body

(see Matter of New York City Health & Hosps. Corp. v New York

State Commn. of Correction, 19 NY3d 239 [2012] [finding an

implied exception to the physician-patient privilege from the

Legislature's express provisions that granted a commission the

power to investigate inmate deaths]; Matter of Camperlengo v

Blum, 56 NY2d 251 [1982] [finding an implied exception to the

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physician-patient privilege where the State Department of Social

Services sought medical records as part of a Medicaid fraud

investigation]; People v Fuller, 24 NY2d 292 [1969] [finding an

implied exception to the physician-patient privilege under the

Narcotics Control Act of 1966 that allowed an arrestee's medical

records and statements to physicians in evidence at the addiction

hearing to determine if the arrestee qualified for the program,

but did not permit the use of such material at the arrestee's

criminal case]). 

IV.

Finally, contrary to the People's contention, the

testimony by defendant's psychiatrist that defendant admitted to

the abuse was not harmless. Apart from the victim's testimony,

there was no eyewitness evidence to the abuse, and there was

little, if any, physical evidence establishing it. Moreover, the

prosecutor relied on the psychiatrist's testimony in arguing for

defendant's guilt and, during deliberations, the jury made one

request, namely, it asked for the psychiatrist's response when

she was asked if defendant admitted to her that he sexually

molested the child.

Accordingly, the order of the Appellate Division should

be affirmed. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Pigott. Chief Judge Lippman

and Judges Read, Rivera, Stein and Fahey concur. Judge AbdusSalaam took no part.

Decided May 5, 2015 

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