## Facts

- Tonia Dillenbeck was killed and her son Michael seriously injured in a July 13, 1985 head-on collision on Route 7 in Conklin, New York.
- Plaintiffs alleged Sherry Hess crossed the center line and caused the crash, and that Hess was intoxicated, making intoxication a proximate cause.
- Plaintiffs also sued two taverns, alleging they served Hess excessive alcohol contributing to her intoxication.
- Hess was taken to a hospital where blood was drawn for diagnosis and treatment; no chemical test was requested or administered under Vehicle and Traffic Law § 1194.
- In the ensuing civil action, plaintiffs sought Hess’s hospital records, including the blood test information reflecting blood-alcohol level shortly after the crash.
- Hess refused to authorize disclosure and asserted the physician–patient privilege under CPLR 4504(a).
- Hess was later indicted and ultimately convicted of criminally negligent homicide arising from the incident.

## Issues

1. Whether a defendant waives the physician–patient privilege in a wrongful-death/personal-injury action merely because the plaintiff alleges intoxication and the defendant’s condition is “in controversy.”
2. Whether CPLR 3121(a) (condition “in controversy” discovery) permits compelled disclosure of treatment-related hospital records notwithstanding CPLR 4504(a), absent an affirmative waiver by the privilege holder.

## Decision

- The New York Court of Appeals affirmed the order denying plaintiffs’ motion to compel disclosure of Hess’s hospital records, including blood test results.
- The court held Hess did not waive the physician–patient privilege because she did not affirmatively place her medical condition in issue by claim, counterclaim, or by using it to excuse the conduct alleged.
- The court rejected plaintiffs’ attempt to create waiver through allegations and discovery demands and declined to recognize an additional exception beyond those created by statute.

## Legal Principles

- The physician–patient privilege under CPLR 4504(a) is statutory and is construed to protect confidentiality of medical information obtained for treatment.
- A party does not waive the privilege merely by defending a civil action in which the party’s condition is relevant or “in controversy” under CPLR 3121(a).
- Waiver occurs only when the privilege holder affirmatively relies on the condition in litigation (e.g., asserting it by counterclaim or as a justification/excuse for the conduct complained of).
- Courts will not judicially expand statutory exceptions (such as police-ordered chemical testing under Vehicle and Traffic Law § 1194) to compel disclosure of ordinary diagnostic or treatment-related tests.
- Related criminal proceedings do not, by themselves, eliminate the privilege for purposes of civil discovery.

## Conclusion

Because Hess did not affirmatively place her medical condition at issue, her hospital records and treatment-related blood test information remained protected by the physician–patient privilege and were not discoverable in the civil action despite plaintiffs’ intoxication allegations.


Dillenbeck v. Hess, 73 N.Y.2d 278 (N.Y. 1989)