MHL ARTICLE 81 - New York State Unified Court System

d
Matter of Ruth “TT”(Mc Ghee), 267 A.D.2d 553; 699 N.Y.S.2d 195 (3 Dept., 1999)
Where finding of incapacity was made solely upon report of court evaluator who was not
cross-examined and whose report therefore was not introduced into evidence, and upon
recommendation of court-assigned attorney, it was not possible to determine whether there was clear
and convincing evidence of incapacity.
(v) Confidentiality issues
a. Physician-patient privilege
nd
Matter of Schwartz v King, 81 AD3d 737; 921 N.Y.S. 2d 861(2 Dept., 2011)
Appellate Division dismissed a proceeding pursuant to CPLR Article 78, inter alia, in the nature of
mandamus to compel the court presiding over an Article 81 hearing to direct the respondent to
produce all discovery items sought by the petitioners noting that the petitioner had failed to
demonstrate a clear legal right to the relief sought.
Matter of Taishoff (Ruvolo), (Unpublished Decision and Order) Sup. Ct. Suff. Cty. Index #
44869/08 (Sgroi, J.)
Petitioner sought a subpoena for the hospital records from the AIP's psychiatric inpatient treatment
and requested that they be sealed and shown only the judge (in a non- jury case). The court declined
to grant the subpoena stating that the records were subject to the physician-patient privilege, and
were neither necessary nor appropriate evidence in a contested MHL Art 81 guardianship
proceeding.
st
Matter of Q.E.J., 14 Misc.3d 448; 824 N.Y.S.2d 882 (App Term., 1 Dept 2006) (Leventhal, J.)
Where a treating medical/healthcare facility seeks to admit into evidence a treating physician's
testimony and medical records regarding an AIP, such records and testimony, even for the salutary
purpose of securing an appropriate placement for the AIP, remain privileged and will not be admitted
unless the AIP waives the privilege or affirmatively places his/her medical condition in issue.
nd
Matter of Bess Z., 27 A.D.3d 568; 813 N.Y.S.2d 140 (2 Dept., 2006)
Appellate Division finds that trial court violated the violated the physician-patient privilege by
admitting the testimony of the AIP’s treating physician and that AIP did not waive the privilege by
affirmatively placing her medical condition in issue. However, it finds such violation to be harmless
error since medical testimony is not required in an guardianship proceeding. and the non-medical
testimony established that the IP was unable to function to care for her medical, personal and
financial needs.
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