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