NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4446
SPONSOR: Schimminger (MS)
 
TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to the mental condition of a victim
 
PURPOSE OF THE BILL:
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.
 
SUMMARY OF SPECIFIC PROVISIONS:
§ 1- Amends § 4504 of the Civil Practice Law to add a new subdivision
(e) 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.
§ 2- Effective date.
 
JUSTIFICATION:
In September of 2013 the District Attorneys Association of the State of
New York released a report, "Report of the New York State White Collar
Crime Task Force," that identified several obstacles facing prosecutors
when dealing with elder abuse cases. This legislation is part of a
five-bill legislative package aimed to address those obstacles.
An elderly victim's medical records may be required to prove the exist-
ence of a mental disability that demonstrates the incapacity to consent,
and are certainly crucial evidence in that regard. The experience of
Task Force members in seeking to obtain these records is that in some
areas of New York State health care providers produce medical records in
response to subpoenas duces tecum 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 (Sup. Ct. Suffolk Co., Grand Jury No. 0901954). Although victims
in other types of cases routinely waive their privilege so that prosecu-
tors 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 Task Force therefore recommends amending
CPLR 4504 to allow a prosecutor to obtain medical records with a subpoe-
na, 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 enforce-
ment purposes.
 
PRIOR LEGISLATIVE HISTORY:
2013-2013: A.8778 /S.7179;
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
4446
2015-2016 Regular Sessions
IN ASSEMBLY
February 2, 2015
___________
Introduced by M. of A. SCHIMMINGER, JAFFEE, OTIS, SIMOTAS, ENGLEBRIGHT,
GUNTHER, CLARK, COOK, BRONSON -- Multi-Sponsored by -- M. of A. MAGEE,
MARKEY, PEOPLES-STOKES, PERRY, SKARTADOS, STECK, THIELE -- read once
and referred to the Committee on Codes
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:
1 Section 1. Section 4504 of the civil practice law and rules is
2 amended by adding a new subdivision (e) to read as follows:
3 (e) Mental condition of a victim. Upon receipt of a grand jury subpoe-
4 na issued pursuant to subdivision two of section 610.20 of the criminal
5 procedure law and endorsed by a judge of a superior court, a medical
6 provider must, as indicated in this subdivision, provide to the grand
7 jury the medical records of the person named in the subpoena. A judge of
8 a superior court shall endorse such a grand jury subpoena upon an ex
9 parte sworn showing by a district attorney, or other prosecutor where
10 appropriate, establishing (1) that there is reasonable cause to believe
11 that the person in question is a mentally disabled person, and (2) that
12 there is reasonable cause to believe that the person in question has
13 been the victim of financial exploitation. A person is "mentally disa-
14 bled" for purposes of this subdivision when that person suffers from a
15 mental disease, defect or condition which renders him or her incapable
16 of appraising the nature of the conduct constituting the financial
17 exploitation. Upon receipt of such an endorsed subpoena a medical
18 provider, including but not limited to a physician, psychologist or
19 nurse, shall be required to disclose information relating to the mental
20 or cognitive condition of the person in question that the medical
21 provider acquired in attending the person in a professional capacity,
22 and which was necessary to enable him or her to act in that capacity.
23 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01978-01-5