140 Misc. 2d 770 | N.Y. Sup. Ct. | 1988
OPINION OF THE COURT
On April 17, 1987, in a waiting room at Strong Memorial
Upon entering the examination room plaintiff was asked by defendant, Carol Williams, a project nurse for the infectious disease unit, if he would permit Hoffmann to take his photograph. At first plaintiff declined, but after assurances by both Williams and defendant, Dr. William Valenti, a physician with the infectious disease unit, that a silhouette picture from a back angle would be taken and he would not be recognizable, plaintiff consented.
Since the motion brought by defendants seeks to dismiss the complaint for failure to state a cause of action, all of its allegations will be deemed to be true. Therefore, it is accepted that Burres and Hoffmann did not inform plaintiff that they were associated with the Democrat & Chronicle, and did not tell him the purpose of the photograph. Since Strong is a university hospital, affiliated with the University of Rochester, plaintiff believed the photograph was only for internal or research purposes.
However, two days later, on April 19, 1987, the photograph was published on the front page of the local section of the Sunday edition of the Democrat & Chronicle as part of an article entitled "Aura of urgency cloaks UR’s research on AIDS.” Beneath the photograph was the caption, "Dr. William Valenti of Strong Memorial Hospital’s infectious disease unit conducts an examination of a patient. Valenti’s chief responsibility is caring for AIDS patients.” The article reported that Strong was to receive Federal grants of more than $9,000,000 for research projects related to AIDS, as part of a nationwide research program involving 19 medical centers and coordinated by the National Health Institute. Plaintiff was neither identified nor referred to in the article.
The photograph shows plaintiff in silhouette taken from a back angle. Plaintiff claims he is identifiable because of various physical characteristics, including his receding hairline, high forehead, neatly trimmed sideburns, high cheekbones, ear, deep-set eye socket, and his shoulder which indicated a medium build, as well as his clothing and style of dress.
Plaintiff claims that the publication has caused him and his family to suffer much stress and turmoil. He was unable to go out into public, and received a medical excuse from Valenti exempting him from attending a job training program. The fear of venturing outside his home has caused him to drastically alter his everyday routine and social habits. Plaintiff subsequently sought advice and counseling from a counselor at AIDS Rochester, who advised him to get professional intensive counseling, which he is now receiving, and anticipates needing for an extended period of time.
In this action against the defendants plaintiff sues for invasion of privacy and breach of the physician-patient privilege against Strong, Valenti and Williams, and for libel and invasion of privacy against Burres, Hoffmann and the Democrat & Chronicle. Defendants moved to dismiss the complaint for failure to state a cause of action. The Democrat & Chronicle also moved to dismiss on the ground that it is not a legal entity subject to suit, but merely the name of a newspaper owned by Gannett Company, Inc.
Prior to the return date of these motions plaintiff served an amended complaint substituting Gannett Newspaper and Company in the place of Democrat & Chronicle, and asserting separate causes of action for breach of the physician-patient privilege against Strong and Valenti, and a conspiracy cause of action against all defendants. At oral argument the parties agreed that the court could consider the motions to dismiss as attacking both the original and amended complaints (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:65, at 70; but see, Lipary v Posner, 96 Misc 2d 578). Following argument of the motions the claims against the Democrat & Chronicle, Gannett, Burres and Hoffmann were dismissed and decision was reserved on the motion by the medical defendants.
The third cause of action in both the original and amended complaints seeks damages for invasion of privacy, and is
However, a " 'picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise’ ” (Murray v New York Mag. Co., 27 NY2d 406, 409, quoting Dallesandro v Holt & Co., 4 AD2d 470, 471, appeal dismissed 7 NY2d 735; see also, Arrington v New York Times Co., 55 NY2d 433).
Plaintiff argues that the article in this case is an advertisement in disguise because its primary purpose was to draw attention to the research program and thereby induce the participation of volunteers. "Use for 'advertising purposes’ is defined as solicitation for patronage, intended to promote the sale of some collateral commodity or service” (Davis v High Socy. Mag., 90 AD2d 374, 379). The mere mention that volunteers will be needed for vaccine testing simply does not fall within this definition.
Furthermore, even if it is conceded that the article is an advertisement in disguise, there is no claim that the medical defendants, as opposed to the newspaper and its employees, made any use of the photograph (see, De Lesline v State of New York, 91 AD2d 785, 786).
Section 51 of the Civil Rights Law authorizes the maintenance of an invasion of privacy action only against a person who "used” plaintiff’s photograph. Although the amended complaint alleges that Williams and Valenti encouraged plaintiff to have his photograph taken, there are no allegations to the effect that they took the photograph, sold it, published it, or otherwise exercised any control over it, to give rise to the conclusion that they "used” the photograph (see, Arrington v New York Times Co., supra, at 442-443).
Although Smith (supra), a Second Department case, appears to indicate in dictum that disclosure of confidential medical information may constitute an invasion of privacy under the Civil Rights Law, the Fourth Department’s view is to the contrary (MacDonald v Clinger, 84 AD2d 482, 484). Smith does, however, demonstrate the viability of a cause of action based on the unauthorized disclosure of confidential medical information to sustain plaintiff’s fourth and fifth causes of action.
The fourth and fifth causes of action in the amended complaint assert claims against Strong and Valenti for breach of the physician-patient privilege. These claims are predicated upon the fact, for the purpose of the motion, that plaintiff consented to the taking of the photograph only after he was assured by Williams and Valenti that he would not be recognizable, and that, by permitting a recognizable picture of plaintiff to be published, plaintiff’s physician-patient privilege was violated.
The first case in New York, in an excellent opinion analyzing the foundations of a claim arising from the unauthorized disclosure of a patient’s confidences, is Doe v Roe (93 Misc 2d 201 [Stecher, J.]). More recently the analysis undertaken in Doe was adopted in MacDonald v Clinger (84 AD2d 482, supra). These cases establish that the applicable statutes and regulations
The theory of recovery for unauthorized disclosure is not, however, rooted solely in the statutory and regulatory protection, nor limited thereby. Rather, the physician-patient relationship itself gives rise to an implied covenant of confidence and trust which is actionable when breached (see, Rea v Pardo, 132 AD2d 442, 445). Recovery for such breach is not confined to economic loss, as in an action for breach of contract, because "the relationship contemplates an additional duty springing from but extraneous to the contract and * * * the breach of such duty is actionable as a tort” (MacDonald v Clinger, supra, at 486).
The argument of the medical defendants that they did not disclose information obtained from plaintiff in confidence fails to appreciate the proper scope of the physician-patient privilege. In construing the reach of the privilege, it has been held that the fact that a person has received treatment is as much confidential information protected by the privilege as is the nature of the treatment (see, Matter of Grand Jury Investigation of Onondaga County, 90 AD2d 990, affd 59 NY2d 130; Boddy v Parker, 45 NY2d 1000).
It is precisely that type of information which was disclosed here. Accepting the allegations in the amended complaint as true, plaintiff did not consent to the newspaper publication of a photograph in which he would be recognizable. Nor does it appear that he consented to the presence of the newspaper photographer and reporter in the disease unit waiting room.
That the privilege encompasses a patient’s identity as well as the treatment he receives is particularly appropriate in this case. Generally, the purpose of the physician-patient privilege is to encourage proper medical treatment (see, Matter of Grand Jury Proceedings [Doe], 56 NY2d 348, 352). One of the important objectives of an AIDS clinic is to encourage people suffering from AIDS, or who suspect that they may be infected by the HIV virus, to come in for testing and treatmént without the fear of public disgrace or shame. The stigma which comes from the disclosure that a person is a patient at an AIDS clinic will deter a person from seeking treatment or testing, particularly at the early stages of the disease before symptoms develop. In light of this, it is inconceivable that the staff of the infectious disease unit would permit the presence of the news media in the waiting room, let alone encourage patients to submit to photographs. "The relationship of the parties here was one of trust and confidence out of which sprang a duty not to disclose. Defendant[s’] breach was not merely a broken contractual promise but a violation of a fiduciary responsibility to plaintiff implicit in and essential to the doctor-patient relation” (MacDonald v Clinger, 84 AD2d 482, 487, supra).
The affidavit of Hoffmann submitted by defendants does not erode the legal sufficiency of plaintiff’s action. Hoffmann states that before he took the photograph he identified himself to plaintiff as a photographer for the Democrat & Chronicle, that he took the photograph in the examining room, and that while in the examining room he heard plaintiff question Valenti about his treatment. Accordingly, the defendants claim plaintiff waived the physician-patient privilege.
When evidentiary material is considered on a motion to dismiss for failure to state a cause of action, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it * * * dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275).
Accordingly, the medical defendants’ motion to dismiss the complaint against them is granted as to the third cause of action in the amended complaint, but denied as to the fourth and fifth causes of action. Their motion to dismiss the sixth cause of action has been rendered moot by plaintiff’s withdrawal of that claim.
CPLR 4504 (a) provides in part: "Unless the patient waives the privilege, a person authorized to practice medicine * * * shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”
Public Health Law § 2803-c (3) (f) provides: "Every patient shall have the right to have privacy in treatment and * * * confidentiality in the treatment of personal and medical records”.