Lead Opinion
OPINION OF THE COURT
The question presented by this appeal is whether evidentiary privileges prevent disclosure in a wrongful death action concerning the mental condition of the decedent whose unwitnessed death occurred under circumstances consistent with either negligence of the defendant or suicide. We hold that since decedent himself could not have prevented disclosure, his personal representative may not do sо in an action brought under EPTL 5-4.1.
Plaintiff is the administratrix of the estate of her husband, Robert Prink, who was an associate of a law firm whose offices were at 30 Rockefeller Plaza in New York City. On March 1, 1976, he was found dead on the sixth floor setback of the building. The window of the 36th floor office Mr. Prink had occupied was open. There were no eyewitnesses, but the deputy chief medical examiner noted on Mr. Prink’s death certificate that Dr. Thomas Dоyle, Mr. Prink’s psychiatrist, had reported to him that Mr. Prink had been acutely tense and depressed.
Thereafter plaintiff commenced the present action against defendants, the owners and architects respectively of 30 Rockefeller Center, claiming that negligence in the design and installation of the window alcove desk at which decedent worked and in the maintenance of the window required that he kneel on the desk in order to open the window which was jammed, and that he lost his balance and fell when he attempted to do so. During the examination of plaintiff before trial she admitted that her husband had told her sometime before his death that he was seeing Dr. Doyle, a psychiatrist, but refused on the basis of the spousal privilege to disclose what her husband had said about why he was seeing Dr. Doyle. She also admitted that after her husband’s death she had spoken with Dr. Doyle, but refused to disclose the content
The initial inquiry is whether privilege ever attached. The conversation between Mr. and Mrs. Prink occurred during marriage and was of a nature that it would not have been made but for the confidence induced by the marital relationship. It would, therefore, be within the protection of CPLR 4502 (subd [b]). Less certain is whether Dr. Doyle’s conversation with Mrs. Prink after her husband’s death is privileged for Mrs. Prink did not consult Dr. Doyle as a patient. Mr. Prink did, however, and Dr. Doyle’s information concerning him was, therefore, "acquired in attending a patient in a professional capacity” within the meaning of CPLR 4504 (subd [a]) and for purposes of the present inquiry at least may be presumed to have been "necessary to enable him to act in that capacity” as required by that provision.
Neither the spousal (see Southwick v Southwick,
There is, however, another basis upon which we hold nоt only the doctor-patient but also the spousal privilege waived. The instant action is brought pursuant to EPTL 5-4.1, which authorizes an action for wrongful death only "for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued” (emphasis supplied). Thus to succeed in this action, which is wholly statutory in nature, plaintiff must establish that it could have been maintained by decedent had he survived (Emery v Rochester Tel. Corp.,
Clearly his privilege against self incrimination would not have helped him, for that privilege does not permit a plaintiff to claim affirmative relief and at the same time refuse to disclose information bearing upon his right to maintain his action (Levine v Bornstein,
In Koump plaintiff demanded authorization pursuant to CPLR 3121 to obtain defendant’s hospital record in an effort to show that defendant wаs intoxicated at the time his car crossed a center divider striking plaintiff’s car and injuring plaintiff. We upheld defendant’s claim of privilege in that case because defendant had done no more than deny plaintiff’s allegation that defendant was intoxicated and plaintiff’s only evidence of intoxication was an attorney’s affidavit reciting that the police report of the accident contained a hearsay statеment that defendant appeared intoxicated. Nevertheless, we recognized (
Whatever the ultimate determination of the triers of fact may be in the present case and notwithstanding the presumption against suicide which they will have to consider in reaching their determination, we conclude that it is a matter
Bearing in mind the purpose for which the privileges in question were created (see Richardson, op. tit, §§ 428, 447), the affirmative stance of plaintiff who claims on behalf of decedent’s distributees to have sustained pecuniary injury as a result of defendants’ negligence, and the unfairness of permitting plaintiff to succeed by hiding behind the privileges asserted, we are satisfied on balance that the better policy is to hold the privileges waived. The basis for that conclusion as to the physician-patient privilege is set forth in Koump v Smith (
"while the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of thе rule of privilege in encouraging marital confidences and wedded harmony, is at best doubtful and marginal.
"Probably the policy of encouraging confidences is not the prime influence in creating and maintaining the privilege. It*318 is really a much more natural and less devious matter. It is a matter of emotion and sentiment. All of us have a feeling of indelicacy and want of decorum in prying into the secrets of husband and wife. It is important to reсognize that this is the real source of the privilege. When we do, we realize at once that this motive of delicacy, while worthy and desirable, will not stand in the balance with the need for disclosure in court of the facts upon which a man’s life, liberty, or estate may depend.”5
Accordingly the certified question should be answered in the affirmative and the order of the Appellate Division should be affirmed.
Notes
. While plaintiffs testimony concerning what Dr. Doyle told her is clearly hearsay, that would not protect her from the disclosure required by CPLR 3101 which requires revelation of inadmissible testimony that may lead to discovery of admissible evidence (Baxter v Orans,
. To be distinguished, of course, is the common-law rule permitting an eavesdropper to testify concerning an otherwise privileged communication (see Lanza v New York State Joint Legislative Comm.,
. Since we are, thus, concеrned with the effect of EPTL 5-4.1 on Mr. Frink’s hypothetical action, we do not reach the effect of CPLR 4504 (subd [c]) and its troublesome exception of "information which would tend to disgrace the memory of the decedent” (see Tinney v Neilson’s Flowers,
. In light of that holding it is unnecessary for us to consider whether absent the extraordinary facts of the instant case, decedent’s mеntal condition was put in issue by defendants’ plea of an affirmative defense of suicide (see Constantine v Diello,
. (Accord Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn L Rev 675, 682; Hines, Privileged Testimony of Husband and Wife in California, 19 Cal L Rev 390, 410-414.)
The injustice involved is the more apparent when, as here, the widow will benefit substantially from the recovery and, as the dissent concedes, CPLR 4502 (subd [b]) does not prevent her disclosure of her deceased husband’s statеments. The Hobson’s choice suggestion of the dissent simply emphasizes the injustice; there was no grievous wrong for which to seek redress if decedent in fact committed suicide. Nor bearing in mind the presumption against suicide can it be said that the widow’s testimony "serves no purpose” because similar testimony may be available through the physician. Finally, with respect to Warner v Press Pub. Co. (
Dissenting Opinion
(dissenting in part). I dissent in part. I would modify the order of the Appellate Division and answer the certified question in the negative.
The order of the Appellate Division affirms an order of Special Term directing plaintiff to appear for oral еxamination concerning her conversations both with decedent, her late husband, and with decedent’s psychiatrist occurring after decedent’s death. I concur in permitting disclosure of the latter, but I would preclude the questioning of plaintiff about her discussions with decedent concerning the reasons for and circumstances of psychiatric care.
There is no quarrel with the determination that the commencement of the wrongful death action placed in issue decedent’s mental condition, requiring disclosure of the communications between decedent and his psychiatrist. While plaintiff may not rely on the doctor-patient privilege with respect to her talks with the psychiatrist, I cannot concur in
The privilege for marital communications was born of the recognition that the privacy surrounding the marital relation should be held inviolate in order to foster mutual confidenсe between husband and wife (see People v Daghita,
Of course, to mandate such extraordinary protection, the communication must have been made in confidence, for the privilege "encomрasses only those statements that are 'confidential’ that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe,
The majority does not dispute that the communications sought to be disclosed in the instant case come within the long-honored privilege. Trust in the inviolability of communications to a spouse clearly would prompt one to reveal what are often the painful experiences and feelings necessitating psychiatric treatment. Notwithstanding the conceded applicability of the privilege, the majority overrides its salutary
The rule codifying the privilege permits no such drastic result. CPLR 4502 (subd [b]) provides that "[a] husband or wife shall not be required, or, without the consent of the other if living, allowed, to disclose a confidential communication made by one to the other during mаrriage.” By its terms, the death of one spouse does not destroy the privilege and the surviving spouse may, but cannot be compelled to, disclose the communications by the deceased spouse (see Richardson, Evidence [10th ed — Prince], § 455). And the rule does not mandate that the privilege be available only in a defensive posture. While the Legislature has made the privilege subject to certain exceptions (e.g., Fаmily Ct Act, § 1046, subd [a], par [vii] [privilege not available in a proceeding alleging child abuse or neglect]; Social Services Law, § 384-b, subd 3, par [h] [privilege not available in proceeding to terminate parental rights]), there is no legislative expression that a plaintiff may not employ the shield of the privilege.
Prior to today, waiver of a privilege was accomplished by express consent of the spouse or by failure to intеrpose a timely objection (Parkhurst v Berdell,
The judgment of the Legislature, reflected in the codification of the privilege, expresses the long-standing social policy that the injury to domestic harmony and marital privacy occasioned by the unrestricted search for relevant information is
These considerations notwithstanding, the majority has placed its imprimatur on a practice which compels a spouse to testify to the contents of communications made in confidence, thereby eviscerating the sphere of marital privacy long cherished in our society. Wholesale destruction of the marital privilege is unnecessary to ensure the integrity of the judicial process and such a drastic rule serves no purpose where the information sought is available through other sources. The impact at trial, if any, of the exercise of the privilege can be minimized by the less drastic measure of permitting the fact finder to draw an unfavorable inference from the failure to disclоse.
While the Constitution might require that rules of evidence or privileges give way in a criminal proceeding (see Davis v Alaska,
That we have apparently accepted the proposition that, as a matter of policy, a plaintiff may not sue on a claim and yet assert the constitutionally guaranteed privilege against self incrimination (see Levine v Bornstein,
Dissenting Opinion
(dissenting in part). Agreeing wholeheartedly with the views expressed by Chief Judge Cooke, I but add that our continued support rather than abаndonment of the inter-spousal privilege is indorsed by the psychological and sociological human need for someone in whom to confide and the growing recognition of the constitutional right of privacy (see, e.g., Griswold v Connecticut,
Judges Jasen, Jones and Wachtler concur with Judge Meyer; Chief Judge Cooke dissents in part and votes to modify in an opinion in which Judge Gabrielli concurs and in which Judge Fuchsberg concurs in a separate dissenting memorandum.
Order affirmed, with costs. Question certified answered in the affirmative.