senate Bill S7179

2013-2014 Legislative Session

Relates to the mental condition of a victim

download bill text pdf

Sponsored By

Archive: Last Bill Status - Passed Senate


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

do you support this bill?

Actions

view actions (6)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 12, 2014 referred to codes
delivered to assembly
passed senate
Jun 03, 2014 ordered to third reading cal.1129
committee discharged and committed to rules
May 02, 2014 referred to judiciary

Votes

view votes

Co-Sponsors

S7179 - Bill Details

See Assembly Version of this Bill:
A8778
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §4504, CPLR

S7179 - Bill Texts

view summary

Relates to the mental condition of a victim.

view sponsor memo
BILL NUMBER:S7179

TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to the mental condition of a victim

PURPOSE:

To allow prosecutors to obtain medical records of mentally impaired
victims of financial exploitation, without requiring a waiver from
those very victims.

SUMMARY OF PROVISIONS:

Section 1 amends § 4504 of the Civil Practice Law to add a new
subdivision (e) to allow prosecutors to obtain medical records of
mentally impaired victims of financial exploitation, without requiring
a waiver from those very victims

Section 2 states that this act shall take effect immediately

JUSTIFICATION:

An elderly victim's medical records may be required to prove the
existence of a mental disability that demonstrates the incapacity to
consent, and are certainly crucial evidence in that regard. In some
areas of New York State health care providers produce medical records
in response to subpoenas duces tecurn issued by grand juries. In
others, however, providers refuse to comply with subpoenas on the
grounds that doing so would violate the physician-patient privilege
codified in CPLR 4504. Although victims in other types of cases
routinely waive their privilege so that prosecutors can obtain crucial
medical records, in the case of a mentally impaired victim that may be
impossible. Such a victim, of course, cannot consent to waiving her
medical privilege any more than she can consent to having her property
taken. As a result, law enforcement efforts against elder fraud have
suffered.

As the Court of Appeals has recognized, "the purpose of the privilege
is to protect the patient, not to shield the criminal" (Matter of
Grand Jury Proceedings (Doe), 56 N.Y.2d 348, 352-53 (1982)). For that
reason, it is plainly in the public interest to allow courts to order
the production of the records of mentally-impaired victims. Because
the privilege is a creature of statute, such change can only come from
the Legislature (Matter of Grand Jury Investigation of Onondaga
County, 59 N.Y.2d 130, 134 (1983)). The bill would amend CPLR 4504 to
allow a prosecutor to obtain medical records with a subpoena, endorsed
by the court, based upon a showing that the patient suffers from a
mental disability, and that the patient has been the victim of a
crime.

This proposal would not run afoul of the Health Insurance Portability
and Accountability Act ("HIPAA"), The HIPAA privacy rule makes
exceptions for judicial and administrative proceedings, and law
enforcement purposes.

LEGISLATIVE HISTORY:


New bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately

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

                                  7179

                            I N  S E N A T E

                               May 2, 2014
                               ___________

Introduced  by  Sen. VALESKY -- 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  the
  mental condition of a victim

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

  Section 1.   Section 4504 of the  civil  practice  law  and  rules  is
amended by adding a new subdivision (e) to read as follows:
  (E) MENTAL CONDITION OF A VICTIM. UPON RECEIPT OF A GRAND JURY SUBPOE-
NA  ISSUED PURSUANT TO SUBDIVISION TWO OF SECTION 610.20 OF THE CRIMINAL
PROCEDURE LAW AND ENDORSED BY A JUDGE OF A  SUPERIOR  COURT,  A  MEDICAL
PROVIDER  MUST,  AS  INDICATED IN THIS SUBDIVISION, PROVIDE TO THE GRAND
JURY THE MEDICAL RECORDS OF THE PERSON NAMED IN THE SUBPOENA. A JUDGE OF
A SUPERIOR COURT SHALL ENDORSE SUCH A GRAND JURY  SUBPOENA  UPON  AN  EX
PARTE  SWORN  SHOWING  BY A DISTRICT ATTORNEY, OR OTHER PROSECUTOR WHERE
APPROPRIATE, ESTABLISHING (1) THAT THERE IS REASONABLE CAUSE TO  BELIEVE
THAT  THE PERSON IN QUESTION IS A MENTALLY DISABLED PERSON, AND (2) THAT
THERE IS REASONABLE CAUSE TO BELIEVE THAT THE  PERSON  IN  QUESTION  HAS
BEEN  THE  VICTIM OF FINANCIAL EXPLOITATION. A PERSON IS "MENTALLY DISA-
BLED" FOR PURPOSES OF THIS SUBDIVISION WHEN THAT PERSON SUFFERS  FROM  A
MENTAL  DISEASE,  DEFECT OR CONDITION WHICH RENDERS HIM OR HER INCAPABLE
OF APPRAISING THE NATURE  OF  THE  CONDUCT  CONSTITUTING  THE  FINANCIAL
EXPLOITATION.  UPON  RECEIPT  OF  SUCH  AN  ENDORSED  SUBPOENA A MEDICAL
PROVIDER, INCLUDING BUT NOT LIMITED  TO  A  PHYSICIAN,  PSYCHOLOGIST  OR
NURSE,  SHALL BE REQUIRED TO DISCLOSE INFORMATION RELATING TO THE MENTAL
OR COGNITIVE CONDITION OF  THE  PERSON  IN  QUESTION  THAT  THE  MEDICAL
PROVIDER  ACQUIRED  IN  ATTENDING THE PERSON IN A PROFESSIONAL CAPACITY,
AND WHICH WAS NECESSARY TO ENABLE HIM OR HER TO ACT IN THAT CAPACITY.
  S 2. This act shall take effect immediately.


 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13770-01-4

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.