senate Bill S5074A

2013-2014 Legislative Session

Relates to waiver of privileged confidential information

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

view actions (18)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Feb 10, 2014 referred to codes
delivered to assembly
passed senate
Feb 04, 2014 advanced to third reading
Feb 03, 2014 2nd report cal.
Jan 28, 2014 1st report cal.82
Jan 08, 2014 referred to judiciary
returned to senate
died in assembly
Jun 11, 2013 referred to codes
delivered to assembly
passed senate
Jun 10, 2013 advanced to third reading
Jun 05, 2013 2nd report cal.
Jun 04, 2013 1st report cal.1022
May 13, 2013 print number 5074a
amend and recommit to judiciary
May 08, 2013 referred to judiciary

Votes

view votes

Jan 28, 2014 - Judiciary committee Vote

S5074A
19
0
committee
19
Aye
0
Nay
3
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Judiciary committee vote details

Jun 4, 2013 - Judiciary committee Vote

S5074A
19
0
committee
19
Aye
0
Nay
4
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Judiciary committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

S5074 - Bill Details

See Assembly Version of this Bill:
A7280
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §4504, CPLR

S5074 - Bill Texts

view summary

Provides that in a civil action, an operator of a motor vehicle in this state shall be deemed to have waived privileged confidential information in regard to the results of any tests administered following a motor vehicle accident which reveal the alcohol or drug content in such operator's body.

view sponsor memo
BILL NUMBER:S5074

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to waiver of privileged confidential information

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

CPLR 4504 creates an evidentiary privilege governing communications
between a patient and his or her physician, as well as other named
persons attending a patient in a professional capacity, regarding
information necessary to enable that physician or other named person
to act in that professional capacity. In recent years, court decisions
have made clear that, under this statute, the results of any tests
administered following a motor vehicle accident which reveal the
alcohol or drug contents in the body of the operator of a motor
vehicle are not to be discoverable nor admitted into evidence in a
civil action unless the test is administered at the direction of a
public officer or by court order. (See, Dillenbeck v. Hess, 73 N.Y.2d
278 (1989); Neferis v. DeStefano, 265 A.D.2d (2d Dept. 1999); Fox v.
Marshall, 2012 NY Slip Op. 00328 (2d Dept., Jan. 2012); NYS Vehicle
and Traffic Law § 1194).

We believe that the Legislature must address the evidentiary problem
unforeseen at the time the privilege was enacted. This measure would
do this. It would enact a waiver of the privilege by an operator of a
motor vehicle in this state who has been in a motor vehicle accident
upon whom medical tests were administered following the accident,
solely as to the results of the tests administered where the tests
reveal the contents of alcohol or drugs in the driver's body and for
the exclusive purpose of use in a civil action.

In this regard, we agree with the views expressed by the dissent in
Dillenbeck that such an amendment would further the strong public
policy of this State to prevent the driving of a motor vehicle while
impaired by alcohol or drugs.

This measure is intentionally narrow and does not infringe upon the
confidentiality between a patient and his or her health care provider.
The waiver does not include notes or observations made or recorded in
a patient's chart nor a patient's statements made in the emergency
room or elsewhere nor any other test results nor any written or verbal
communication between the patient and his or her healthcare
professional. This permits the trial court to allow the discovery of
and admission into evidence of the results of a test taken after a
motor vehicle accident revealing the alcohol or drug contents in the
motor vehicle operator's body.

This measure would have no fiscal impact on the State. It would take
effect on the first day of January next succeeding the date on which
it shall have become law and shall apply to any action commenced on or
after such effective date.

Legislative History:

None. New proposal.


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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5074

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT to amend the civil practice law and rules, in relation to waiver
  of privileged confidential information

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision (a) of section 4504 of the civil practice law
and rules, as amended by chapter 555 of the laws of 1993, is amended  to
read as follows:
  (a) Confidential information privileged. Unless the patient waives the
privilege,  a person authorized to practice medicine, registered profes-
sional nursing,  licensed  practical  nursing,  dentistry,  podiatry  or
chiropractic  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 enable him OR HER to act in that capacity. The
relationship of a physician and patient shall exist  between  a  medical
corporation,  as defined in article forty-four of the public health law,
a professional service corporation organized under  article  fifteen  of
the  business corporation law to practice medicine, a university faculty
practice corporation organized under section fourteen hundred twelve  of
the  not-for-profit  corporation  law to practice medicine or dentistry,
and the patients to whom they respectively render  professional  medical
services.
  AN  OPERATOR  OF A MOTOR VEHICLE IN THIS STATE SHALL BE DEEMED TO HAVE
WAIVED THIS PRIVILEGE IN REGARD TO THE RESULTS OF ANY TESTS ADMINISTERED
FOLLOWING A MOTOR VEHICLE ACCIDENT WHICH  REVEAL  THE  ALCOHOL  OR  DRUG
CONTENTS  IN  SUCH  OPERATOR'S  BODY.  A patient who, for the purpose of
obtaining insurance benefits, authorizes  the  disclosure  of  any  such
privileged  communication  to  any  person  shall  not be deemed to have

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09759-01-3

S. 5074                             2

waived the privilege created by this subdivision. For purposes  of  this
subdivision:
  1.  "person" shall mean any individual, insurer or agent thereof, peer
review committee, public or private corporation, political  subdivision,
government  agency,  department  or  bureau  of the state, municipality,
industry, co-partnership, association, firm, trust, estate or any  other
legal entity whatsoever; and
  2.  "insurance  benefits"  shall include payments under a self-insured
plan.
  S 2. This act shall take effect on the first of January next  succeed-
ing  the date on which it shall have become a law and shall apply to any
action commenced on or after such date.

S5074A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7280
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §4504, CPLR

S5074A (ACTIVE) - Bill Texts

view summary

Provides that in a civil action, an operator of a motor vehicle in this state shall be deemed to have waived privileged confidential information in regard to the results of any tests administered following a motor vehicle accident which reveal the alcohol or drug content in such operator's body.

view sponsor memo
BILL NUMBER:S5074A

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to waiver of privileged confidential information

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

CPLR 4504 creates an evidentiary privilege governing communications
between a patient and his or her physician, as well as other named
persons attending a patient in a professional capacity, regarding
information necessary to enable that physician or other named person
to act in that professional capacity. In recent years, court decisions
have made clear that, under this statute, the results of any tests
administered following a motor vehicle accident which reveal the
alcohol or drug contents in the body of the operator of a motor
vehicle are not to be discoverable nor admitted into evidence in a
civil action unless the test is administered at the direction of a
public officer or by court order. (See, Dillenbeck v. Hess, 73 N.Y.2d
278 (1989); Neferis v. DeStefano, 265 A.D.2d (2d Dept. 1999); Fox v.
Marshall, 2012 NY Slip Op. 00328 (2d Dept., Jan. 2012); NYS Vehicle
and Traffic Law § 1194).

We believe that the Legislature must address the evidentiary problem
unforeseen at the time the privilege was enacted. This measure would
do this. It would enact a waiver of the privilege by an operator of a
motor vehicle in this state who has been in a motor vehicle accident
upon whom medical tests were administered following the accident,
solely as to the results of the tests administered where the tests
reveal the contents of alcohol or drugs in the driver's body and for
the exclusive purpose of use in a civil action.

In this regard, we agree with the views expressed by the dissent in
Dillenbeck that such an amendment would further the strong public
policy of this State to prevent the driving of a motor vehicle while
impaired by alcohol or drugs.

This measure is intentionally narrow and does not infringe upon the
confidentiality between a patient and his or her health care provider.
The waiver, does not include notes or observations made or recorded in
a patient's chart nor a patient's statements made in the emergency
room or elsewhere nor any other test results nor any written or verbal
communication between the patient and his or her healthcare
professional. This permits the trial court to allow the discovery of
and admission into evidence of the results of a test taken after a
motor vehicle accident revealing the alcohol or drug contents in the
motor vehicle operator's body.

This measure would have no fiscal impact on the State. It would take
effect on the first day of January next succeeding the date on which
it shall have become law and shall apply to any action commenced on or
after such effective date.

2013 Legislative History: OCA 2013-28 Senate 4074 (Sen. Bonacic) (ref
to Judiciary)


2012 Legislative History: Senate 7570 (Sen. Bonacic) (ref to
Judiciary) Assembly 10344 (M. of A. Weinstein) (ref to Codes)

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5074--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT to amend the civil practice law and rules, in relation to waiver
  of privileged confidential information

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision (a) of section 4504 of the civil practice law
and rules, as amended by chapter 555 of the laws of 1993, is amended  to
read as follows:
  (a) Confidential information privileged. Unless the patient waives the
privilege,  a person authorized to practice medicine, registered profes-
sional nursing,  licensed  practical  nursing,  dentistry,  podiatry  or
chiropractic  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 enable him OR HER to act in that capacity. The
relationship of a physician and patient shall exist  between  a  medical
corporation,  as defined in article forty-four of the public health law,
a professional service corporation organized under  article  fifteen  of
the  business corporation law to practice medicine, a university faculty
practice corporation organized under section fourteen hundred twelve  of
the  not-for-profit  corporation  law to practice medicine or dentistry,
and the patients to whom they respectively render  professional  medical
services.
  FOR  THE  EXCLUSIVE PURPOSE OF USE IN A CIVIL ACTION, AN OPERATOR OF A
MOTOR VEHICLE IN THIS STATE SHALL BE DEEMED TO HAVE WAIVED  THIS  PRIVI-
LEGE  IN  REGARD  TO  THE  RESULTS OF ANY TESTS ADMINISTERED FOLLOWING A
MOTOR VEHICLE ACCIDENT WHICH REVEAL THE ALCOHOL OR DRUG CONTENTS IN SUCH
OPERATOR'S BODY. A patient who, for the purpose of  obtaining  insurance

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09759-03-3

S. 5074--A                          2

benefits, authorizes the disclosure of any such privileged communication
to  any  person shall not be deemed to have waived the privilege created
by this subdivision. For purposes of this subdivision:
  1.  "person" shall mean any individual, insurer or agent thereof, peer
review committee, public or private corporation, political  subdivision,
government  agency,  department  or  bureau  of the state, municipality,
industry, co-partnership, association, firm, trust, estate or any  other
legal entity whatsoever; and
  2.  "insurance  benefits"  shall include payments under a self-insured
plan.
  S 2. This act shall take effect on the first of January next  succeed-
ing  the date on which it shall have become a law and shall apply to any
action commenced on or after such date.

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